On rehearing, the Willises raise three issues, one of which we find dispositive; namely, whether the trial court erred by instructing the jury on the affirmative defense of failure to mitigate damages. Initially, we found no error in the trial court's decision to instruct the jury on the failure to mitigate defense. See Willis v. Westerfield, 803 N.E.2d 1147, 1155 (Ind. Ct. App. 2004). Upon further reflection, we now reach the opposite conclusion. * * *

As to all other matters discussed in our original opinion and not herein addressed, we stand by our initial resolution of those issues.
Reversed and remanded for a new trial on the issue of damages.
SHARPNACK, J., and BAILEY, J., concur.

was dated 11/17/04, more than a year ago . . . while the original decision came down in February 2004, almost two years ago.

Ind. Courts - Columnist writes Lake County has too many courts

Mark Kiesling, Munster (NW Indiana) Times columnist, writes today that Lake County has too many courts. A quote:

The reason you have all the courts is because of the infamous 1994 Indiana Supreme Court report known as the "weighted case load study," which looked at all the courts statewide to see if the judges were being overworked.

The conclusion was that Lake County judges in the civil division were laboring in virtual sweatshops. You'd think they were making shoes for Michael Jordan the way the study portrayed the conditions.

By comparison, the judges in the county's criminal division were barely breathing. If you read the study, you'd conclude they came in for a few minutes each morning, had some coffee and then spent the rest of the day on the links.

The problem is that the weighted case load study was a load of horse manure, at least as far as Lake County was concerned.

Environment - Porter County birds; a different look at mountain-top mining; own your own natural gas well

Porter County Birds. This story by Diane Krieger Spivakwas was published by the Gary Post-Tribune Dec. 20th (see ILB entry here). Today the Indianapolis Star picked it up and published an edited version here. It is worth another look.

Mountaintop Mining. The most recent ILB entry on mountaintop mining was Dec. 19th, where a "New Hampshire native watched a [Kentucky] mountain disappear bit by bit at the hands of miners using explosives and giant earth-moving machines." Earlier this week the Louisville Courier Journal had a lengthy AP story by Roger Alford that began:

PIKEVILLE, Ky. -- The towering mountains that frame this Appalachian town have been a hindrance to growth, forcing homes and businesses to crowd side by side on precious little flat land.

That could change under a plan by Pikeville leaders who have recruited a coal company to flatten two mountaintops to expand with new homes, businesses, athletic fields and factories in the town of 6,300.

City Manager Donovan Blackburn said towns like Pikeville that have exhausted all usable land have no choice but to look to the mountaintops.

"If you look at the amount of land that is developable right now, there is virtually none," Blackburn said. "This will be a tremendous benefit."

However, mountaintop coal mining has come under heavy attack from environmentalists who say the practice takes a large toll on nature.

Gas and Oil Wells."Hoosiers seek backyard black gold: Natural gas wells are also in demand" was the headline to another AP story published in the LCJ this week. It begins:

MUNCIE, Ind. -- High energy prices are apparently prompting efforts by some property owners to tap into the oil and natural-gas field that once fueled factories throughout eastern Indiana.

Geologists estimate that the Trenton limestone formation under the Muncie, Anderson and Marion area contained a billion barrels of oil when drilling began more than 100 years ago. But the field also was known for the flaming torches of natural gas that could be seen for miles.

The lure of that gas and oil still has about 10 noncommercial wells being drilled each year for use by the homeowner, farmer or business owning the site.

"Right now, the big thing is oil. We've drilled three oil wells back to back to back, and I'm starting a new one north of Selma," Jack Racer of R&S Drilling in Selma told The Star Press. "When energy prices get high, it kind of goes crazy."

Gov't. - No press credentials, State of Kentucky tells bloggers

"No press credentials, state tells bloggers: NET COMMENTATORS WANT TO COVER '06 LEGISLATIVE SESSION" is the headline to this story in the Lexington Herald-Leader. Some quotes:

Computers in hand, Kentucky's small but growing flock of political Web log publishers will descend on Frankfort next week for the 2006 General Assembly.

But they won't join the ink-stained wretches of the press. State officials are telling the bloggers that they aren't journalists and can't get the press credentials that grant access to the House and Senate floors and Capitol entrances generally closed to the public.

This is irritating to a group that, by nature, tends to wake up cranky on the best of days. * * *

Mark Nickolas, who operates the liberal bluegrassreport.com, swiftly posted a critical essay about his denied credentials under the headline: "A Brave New World Hits The Old World Head-On."

Nickolas, a former Democratic campaign manager who lives in Bourbon County, agreed he's not an objective journalist. He regularly and cheerily insults Gov. Ernie Fletcher and other Republicans on his blog. But he also does original reporting about state government, digging into records and raising questions about politicians.

Nickolas said 2,000 to 3,000 people visit his Web site in a typical week.
"What are the standards going to be?" Nickolas asked. "Is it 'Do you reach an audience?' Well, I must reach as big an audience as some weekly newspapers."

Ind. Law - Legislator promotes bill that would make abortions illegal in Indiana except when a mother's health is in danger

INDIANAPOLIS - State Rep. Troy Woodruff has drafted a bill that would make abortions illegal in Indiana except when a mother's health is in danger, a bill that would bring a firestorm of debate and national attention if filed. * * * Woodruff said the bill as drafted would define life as beginning at conception and would alter Indiana's feticide law. * * * "I think it's very important that we do everything we can to protect Hoosiers whether they're born or not," he said. * * *

Brian Vargus, a professor of political science at Indiana University Purdue University Indianapolis, said Woodruff's bill is a politically smart move. Woodruff cast the deciding vote in the House to pass daylight-saving time, a measure he promised not to support. Now, Vargus said, the abortion debate will make sure religious conservatives turn out to vote for him in 2006.

"The religious base in an off-year election is about 40 percent of the vote," Vargus said. But he said that on the policy front, the bill wouldn't have much impact except to waste lawmakers' time and taxpayer dollars if it's taken through the court system.

Ind. Courts - Longtime prosecutor sworn in as judge for new DeKalb court

"Longtime prosecutor sworn in as judge for new DeKalb court" is the headline to this story by Kara Hull in today's Fort Wayne Journal Gazette. Some quotes:

Monte Brown anticipates he won’t have everything in place when he comes in to work Tuesday for his first day as judge of DeKalb County’s newly created Superior II Court.

He won’t have office supplies. He’ll have a phone but not necessarily anyone to answer it. A court reporter and assistant clerk still have to be hired. But Brown, who was sworn in as a judge Friday morning at the DeKalb County Courthouse, said he’s ready to start the next phase in his career. Brown has served as the DeKalb County prosecutor for the last 17 years.

He was appointed by Gov. Mitch Daniels in November to become the first judge of the new court. * * * Brown’s term of appointment expires Dec. 31, 2006, and he must be elected to a succeeding term to continue in the position. His annual salary as judge will be $110,500. Brown earned $72,930 a year as prosecutor, a part-time position in DeKalb County.

ClaraMary Winebrenner, a deputy prosecutor in DeKalb County, was elected as county prosecutor in a Republican caucus Tuesday night.

INDIANAPOLIS – The Indiana Supreme Court ruled Friday that a northeast Indiana man can move forward with a medical malpractice lawsuit alleging Lasik eye surgery left him nearly blind in one eye.

In 2001, L. Thomas Booth sued Dr. Robert G. Wiley, Dr. Ronald Norlund and Midwest Eye Consultants in Wabash, but an Allen Superior Court trial judge found the man had not filed within the statute of limitations and dismissed the case.

The crux of the legal argument is when Booth should have known enough to suspect that a Lasik eye surgery first performed in November 1998 might have contributed to severe impairment in his right eye. * * *

Under law, Booth had two years from the date of the original surgery or until November 2000 to claim malpractice. But Booth’s attorneys argued he didn’t understand there was a connection between his worsening eyesight and the Lasik surgeries until after that period lapsed.

It wasn’t until December 2000 that another doctor told Booth that Lasik surgery should not have been performed because of his pre-existing conditions and might have complicated his cataracts. After this assessment, Booth sued in July 2001.

The Indiana Supreme Court – in a split 3-2 decision – found the evidence does not “indisputably establish that Mr. Booth discovered the malpractice and resulting injury, or acquired knowledge sufficient to lead a reasonably diligent person to discover the malpractice and resulting injury, until Dec. 4, 2000.” Therefore, he is allowed to pursue his claim in court. * * *

Supreme Court Chief Justice Randall T. Shepard issued a dissent in the case in which he accused his colleagues of stretching the bounds of Indiana law on medical malpractice. He said it “takes us light years away” from previous precedent and “turns the medical malpractice statute of limitations into a very liberal rule without so much as a word about why the Indiana Constitution requires the result.”

The Indianapolis Star reports today, in a story by Bill Ruthhart headlined "Director appointed to register lobbyists: Ex-prosecutor will ensure those wanting to influence executive branch sign up first," on the new rules that go into effect January 1st.

Jeff Gill was appointed executive director of executive branch lobbying, Indiana Department of Administration Commissioner Earl Goode announced Friday. Gill, who spent 14 years in the Marion County prosecutor's office, will head a new effort requiring lobbyists to register before trying to contact anyone who works in the state's executive branch. * * *

The new rules, which are effective Sunday, require registration from people who are paid at least $1,000 a year to lobby the executive branch. Lobbyists would be required to give their names, addresses, phone numbers and e-mail information along with the same information about their employers.

Lobbyists also will be required to give a description of the subject they want to influence, the state agencies involved and the compensation or salary they expect. Gill said he's looking forward to enforcing the new rules.

Also effective Jan. 1st is the Office of the Inspector General's Indiana code of ethics, which sets ethical standards for:

(1) the official conduct of the current and former officers, employees, and special state appointees of the executive and administrative branches of state government; and
(2) persons who have or had a business relationship with an agency

I haven't studied these new rules, but one thing caught my eye this morning. Generally, state rules do not incorporate the text of a statute, as the statute may change, creating a variance between the two, and of course the statute would prevail. That seems to be the style followed in the Inspector General's rulemaking. For example, 42 IAC 1-5-5 Moonlighting reads:

Sec. 13. A state officer, employee, or special state appointee shall not engage in, or direct others to engage in, work other than the performance of official duties during working hours, except as permitted by general written agency, departmental, or institutional policy or regulation. (Office of the Inspector General; 42 IAC 1-5-13; filed Dec 7, 2005, 2:45 p.m.: 29 IR 1210)

No reference or acknowledgment is made to the extensive provisions of the statute, IC 35-44-2-4 Ghost employment, which reads:

Sec. 4. (a) A public servant who knowingly or intentionally:
(1) hires an employee for the governmental entity that he serves; and
(2) fails to assign to the employee any duties, or assigns to the employee any duties not related to the operation of the governmental entity;
commits ghost employment, a Class D felony.
(b) A public servant who knowingly or intentionally assigns to an employee under his supervision any duties not related to the operation of the governmental entity that he serves commits ghost employment, a Class D felony.
(c) A person employed by a governmental entity who, knowing that he has not been assigned any duties to perform for the entity,
accepts property from the entity commits ghost employment, a Class D felony.
(d) A person employed by a governmental entity who knowingly or intentionally accepts property from the entity for the performance of duties not related to the operation of the entity commits ghost employment, a Class D felony.
(e) Any person who accepts property from a governmental entity in violation of this section and any public servant who permits the payment of property in violation of this section are jointly and severally liable to the governmental entity for that property. The attorney general may bring a civil action to recover that property in the county where the governmental entity is located or the person or public servant resides.
(f) For the purposes of this section, an employee of a governmental entity who voluntarily performs services:
(1) that do not:
(A) promote religion;
(B) attempt to influence legislation or governmental policy; or
(C) attempt to influence elections to public office;
(2) for the benefit of:
(A) another governmental entity; or
(B) an organization that is exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code;
(3) with the approval of the employee's supervisor; and
(4) in compliance with a policy or regulation that:
(A) is in writing;
(B) is issued by the executive officer of the governmental entity; and
(C) contains a limitation on the total time during any calendar year that the employee may spend performing the services during normal hours of employment;
is considered to be performing duties related to the operation of the governmental entity.As added by Acts 1977, P.L.340, SEC.58. Amended by P.L.68-1998, SEC. 1.

Friday, December 30, 2005

Here is an unreverential look at SB 135, from the tech world. An Ars Technicareport begins:

If at first you fail, why not try and fail again? That seems to be the unintended message coming out of the office of Indiana State Senator Dennis Kruse (R). The State Senator is proposing legislation that would restrict the sale of video games to minors, despite the fact that there is questionable national legislation already pending (that's likely unconstitutional), and state attempts to pass such laws to date have been smashed by the judicial gavel.

Kruse, it might seem, is a crusader. At least, one hopes that he's expecting a divine reward for dragging the state into this debacle again. The state capitol, Indianapolis, was one of the first cities in the nation to try and strike out at violent video games, first going after arcades and other entertainment vendors back in 2000. The quest ended up where they all do: in front of a judge, and left for dead. Now that California, Illinois, and Michigan have all suffered astounding defeats in their attempts to address PC and console game sales, Indiana wants to join the ranks of the failures.

State Sen. Vi Simpson, D-Ellettsville, said Friday she would introduce the law in the upcoming session designed to compel stores from selling or renting the games to people 17 years old and under, as the “M” for mature labels suggest. Although the rating system is in place, no one is required to enforce it, she said Friday.

The bill, modeled after similar laws in other states, would give Indiana enforcement powers over stores that ignore the labels, she said. * * * Simpson said she had been considering the bill for several months. “We’re not setting ages or changing the ratings, we are asking retail agencies to enforce it,” she said Friday.

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending December 30, 2005. There are 54 Court of Appeals cases listed this week.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Ind. Courts - Restoration of the Orange County Courthouse in Paoli in the works

The Orange County Commissioners Expect to Apply For a $500,000 Community Focus Fund Grant to pay for restoration of the Orange County Courthouse in Paoli. A Study conducted by the architectural firm of Kovert Hawkins showed more extensive work is needed than had originally been anticipated. The last major renovation work on the Orange County Court House was performed back in 1993. The study found problems with moisture coming in through the walls, floors and ceiling, mold growth, the exterior painted surfaces are deteriorated, along with window problems. The report also noted that the carpeting was worn, interior plaster walls were cracked and new door hardware was needed. The renovation will also include the installation of an elevator to make the Courthouse accessible to the Handicapped as required by the Americans with diabilities Act. The total cost will be approximately 1.2 Million dollars, with the remainder of the cost to be raised at the local level.

Ind. Courts - New Vigo County judges

Nappanee attorney Evan Roberts will take his oath of office and be sworn in as judge of Elkhart County Superior Court on Friday at 3 p.m. he was chosen last month by Gov. Mitch Daniels to replace Judge Benjamin Pfaf.

Ind. Decisions - Court upholds GM program accused of religious bias

Charles Wilson of the AP has a story this morning, headlined "Court upholds GM program accused of religious bias," on the 7th Circuit's decision yesterday in Moranski v. General Motors, affirming a ruling by District Judge David Hamilton. (See yesterday's ILB entry on the ruling here.)

The AP story notes that:

According to GM's Web site, the company recognizes nine Affinity Groups including ones for people with disabilities, gays and lesbians, women, Hispanics, veterans, and four groups for people of African or Asian ancestry.

From earlier in the story:

Moranski applied in December 2002 to start an interdenominational Christian employees group as part of the diversity program, according to court documents.

GM rejected the application because program guidelines do not allow Affinity Groups to promote religious positions, the documents state. Moranski filed a complaint with the Equal Employment Opportunity Commission and then filed a federal lawsuit claiming that the denial constituted illegal religious discrimination.

Judge David Hamilton dismissed the suit, holding that Moranski had failed to state a claim for the court to consider.

The appeals court agreed. "The allegations in Moranski's complaint make clear that General Motors would have taken the same action had he possessed a different religious position," Judge Ann Claire Williams wrote in opinion. * * *

The guidelines, the court said, prohibit the forming of Affinity Groups based on any religious position, including atheism.

"Simply stated, General Motors's Affinity Group policy treats all religious alike - it excludes them all from serving as the basis of a company-recognized Affinity Group," Williams wrote.

The act, which requires equal treatment within categories, cannot be stretched to require "cross-categorical comparisons when evaluating Title VII claims," the ruling stated.

"[Moranski's] logic would mean that a company would violate Title VII if it recognized an affinity group on the basis of religion but not sex, or granted status to a group on the basis of sex but not to one based on ethnicity," the ruling said.

The U.S. Chamber of Commerce and the Equal Employment Advisory Council, a group representing 325 major corporations, joined in supporting GM. Their brief argued that requiring companies to permit religious groups would have a chilling effect on affinity groups because some employers would discontinue them altogether.

Ind. Decisions - More on Dental Board action against Angola dentist

ANGOLA, Ind. (AP) -- The Indiana attorney general has filed fraud and attempted theft charges against an Angola dentist accused of diagnosing cavities that did not exist.

Dr. Penelope Lynn Dunlap, 35, was charged with six counts of Medicaid fraud and five counts of attempted theft Thursday.

The attorney general's office said Dunlap diagnosed patients with cavities, but other dentists found them to be cavity-free.

An undercover police officer posed as a patient in September. A previous check by another dentist had found the officer to be cavity-free, but Dunlap told the officer she had two cavities. * * *

Allen Stout, Dunlap's attorney, said Thursday evening he had not been notified of the charges but believed the state will regret its decision.

"As the case progresses, I think the prosecutor will be embarrassed they filed these charges," he said.

The Indiana Board of Dentistry was scheduled to hold a hearing Jan. 6 to review the 90-day license suspension Dunlap received Nov. 9 over the allegations. Stout said he doubted that the board would end Dunlap's suspension when three months is up in February.

Laura Nickels appeals the dismissal for lack of subject matter jurisdiction of her personal injury lawsuit against Julie Bryant. The trial court found that because Nickels was employed by both Bryant and New Prime, Inc. (“NPI”), her exclusive remedy is under the Indiana Worker’s Compensation Act. Nickels asserts the trial court erred in finding she was an employee of both Bryant and NPI. * * *

Application of the seven-factor balancing test supports the trial court’s conclusion an employer-employee relationship existed between Bryant and Nickels for purposes of the Act. Accordingly, we affirm.

Annette Donica Giles (“Giles”) appeals a summary judgment for Brown County in a civil suit arising from the death of her husband, Joey Giles (“Joey”). Giles raises one issue, which we restate as whether the trial court erred in granting summary judgment to Brown County. We reverse and remand. * * *

Brown County, as the governmental entity, has the burden of proving its actions fall within the immunity granted by subsection (19). Barnes, 700 N.E.2d at 265. Because Brown County has not demonstrated this dispatching decision constitutes the operation or use of its E-911 system, we find Brown County is not entitled to judgment as a matter of law. Accordingly, the trial court erred in granting Brown County’s motion for summary judgment. We reverse and remand for proceedings consistent with this opinion.

VAIDIK, J., concurs.
SHARPNACK, J., dissents with separate opinion.

I respectfully dissent from the majority’s holding that reverses the trial court’s grant of summary judgment to Brown County. Based on Ind. Code § 34-13-3-3(19), the enhanced emergency communication system immunity provision of the Indiana Tort Claim Act (“ITCA”), and existing caselaw interpreting this provision, I would hold that Brown County is entitled to governmental immunity, and thereby affirm the trial court’s grant of summary judgment in favor of Brown County.

The trial court correctly found that the Landlord’s non-compliance with the notice of damages statute entitled the Tenant to a full refund of the security deposit plus attorney’s fees. However, the trial court erred by allowing the Landlord to recover for damages covered by the security deposit and in excess of the security deposit. Non-compliance with the notice of damages statute precludes recovery of other damages by the Landlord. Affirmed in part, reversed and remanded in part.

Efren Radillo Diaz v. State of Indiana - "Efron Radillo Diaz appeals the trial court’s imposition of consecutive sentences for his convictions on possession of methamphetamine weighing three grams or more with intent to deliver and dealing methamphetamine weighing three grams or more. We find that the trial court’s sentencing order was insufficient to support consecutive sentencing because the trial judge did not clearly state that he found the aggravating circumstances in this case to outweigh the mitigating circumstances. Therefore, we must remand with instructions to enter a clarified sentencing order stating, as to Count I, whether the aggravating circumstances outweigh the mitigating circumstances. Moreover, unless the trial court therein states that the aggravators do, in fact, outweigh the mitigators, Diaz’s sentences should be ordered to run concurrently."

Jarvis L. Watson, Jr. v. State of Indiana - "Jarvis Watson, Jr., appeals his conviction of dealing in cocaine as a Class A felony. He raises two issues, one of which we find dispositive: whether the evidence was sufficient to convict him of dealing in cocaine. We reverse."

Guillermo Samaniego-Hernandez v. State of Indiana - "[W]e conclude that the trial court properly admitted evidence of Samaniego’s involvement in the “controlled buy” prior to execution of the resulting search warrant, the evidence is sufficient to sustain the verdict, and Samaniego’s sentence is lawful and is not inappropriate."

Thursday, December 29, 2005

Ind. Law - Lawyers quick to respond after crash

"Lawyers quick to respond after crash: Their letters soliciting business illustrate the changes since attorneys began advertising" is the headline to this great column by Kevin Leininger is the Fort Waye News-Sentinel. Some quotes:

“Recently, our firm learned that you were in an accident that was not your fault,” began a letter from Fort Wayne attorney Dennis Golden. “You may have a claim to collect monetary compensation if you received any physical injuries.”

“You’ve been in an automobile collision and may be hurt,” attorney Randolph L. Roebuck wrote in another letter. “It was not your fault, but now you must make some critical decisions!”

My favorite, from the firm of Blackburn & Green, began like this: “We have recently learned that some law firms are hiring runners to go to the police station after accidents to obtain a copy of the reports . . . then send letters to potential accident victims. . . We think it is important to remind you not to rely upon solicitation letters that don’t give you adequate facts about the lawyer or firm.”

Where do you suppose Blackburn & Green got Hubartt’s name if not from accident reports and “runners”?

People reared on Perry Mason reruns – and that includes a lot of attorneys – may consider those letters undignified, or worse. But they’re just one example of how the legal profession has changed since the U.S. Supreme Court in 1977 overturned state ethics code banning all forms of legal advertising. States can still regulate the content of legal ads, however, said Don Lundberg, executive secretary for the Indiana Supreme Court’s Disciplinary Commission.

Even though in-person solicitation of clients is prohibited in Indiana, attorneys can send “targeted solicitation” letters, such as those sent to Hubartt, if they meet certain guidelines. They must be marked as “advertising material,” for example, and attorneys cannot claim to specialize in a certain kind of law unless they have been certified as specialists by the state.

Ind. Decisions - 7th Circuit posts four today, including a review of a decision by Judge Hamilton, and more criticism of immigration judges

Several years ago, General
Motors developed what is now known as its Affinity Group
program. The program, which makes company resources
available to recognized groups, began as an outgrowth of
the company’s efforts to support employees from diverse
backgrounds and improve company performance. General
Motors’s Affinity Group Guidelines prohibit the conferral of
Affinity Group status on any group promoting or advocating
a religious position. Citing these Guidelines, General
Motors declined to grant Affinity Group status to employee
John Moranski’s proposed Christian Employee Network. We
agree with the district court that General Motors’s denial of
Affinity Group status to Moranski’s proposed group did not
discriminate against him on the basis of his religion, as the
program treats equally all groups with religious positions.
Therefore, we affirm the district court’s decision to dismiss
Moranski’s complaint for failure to state a claim upon which
relief could be granted.

After a conviction and a forfeiture
verdict, Michael Segal relinquished his interest in several
Chicago-area insurance companies to the United States. The
court appointed a trustee to manage these interests for the
government’s benefit. Segal challenges the district court’s
approval of the trustee’s transfer of one of Segal’s former
businesses, International Film Guarantors, Incorporated
(“IFG”), to an outside firm, Fireman’s Fund Insurance
Company (“Fireman’s Fund”). We affirm.

Pasha, Klodiana v. Gonzales, Albert is an immigration case. The opinion, written by Judge Posner, has an interesting twist on the doctrine of exhaustion of administrative remedies and also echos the criticisms set out in this Dec. 26thILB entry. Some quotes:

At the risk of sounding like a
broken record, we reiterate our oft-expressed concern
with the adjudication of asylum claims by the Immigration
Court and the Board of Immigration Appeals and
with the defense of the BIA’s asylum decisions in this court
by the Justice Department’s Office of Immigration Litigation.
See Benslimane v. Gonzales, No. 04-1339, 2005 WL
3193641, at *1 (7th Cir. Nov. 30, 2005), and cases cited there.
The performance of these federal agencies is too often
inadequate. This case presents another depressing example. * * *

But all that matters is that if the Board of Immigration
Appeals for whatever reason won’t consider constitutional
challenges—and it won’t—there is scant reason to require
the alien to make them to the Board. And so the
government’s failure to address Pasha’s constitutional
argument, on the ground that the appeal is barred by the
exhaustion doctrine, is another lapse. This case has been
poorly handled by the government at every stage: the
proceeding before the immigration judge, the summary
affirmance by the Board of Immigration Appeals, and the
decision by the government in this court to put all its eggs in
a basket that it should have known would not hold them.

The order of removal is vacated and the case returned
to the Board of Immigration Appeals for further proceedings
consistent with this opinion.

Ind. Law - "IDEM had more or less kept their comment period a secret"

Cities like Los Angeles might require air-quality control, however for environmentalists to claim [outdoor] wood-burning furnaces are a health problem in Indiana is ridiculous. State regulators asked for comments from Hoosiers on the subject, and they are on the receiving end from citizens that don't want the IDEM meddling in what method they use to heat their homes. Until State Senator Brent Steele became aware of the public comment period that ends January 3rd, the IDEM had more or less kept their comment period a secret[emphasis added].

Now really! The ILB reported on the Bedford Times-Mail's story yesterday, but I didn't include this section, which I attributed to poor staff work on Senator Steele's behalf:

The proposal also lit up the concerns of state Sen. Brent Steele, R-Bedford, who said he had a hard time tracking down information on the proposal.

“I don't know, really, what's up,” Steele said. “I just noticed they were in a rule-making process, and I couldn't figure out what they were trying to do. ... It dawned on me if it was that hard for me as a senator to find out what was going on, the average person probably didn't know about it.”

So Steele fired off press releases throughout the state, asking Hoosiers to respond to IDEM's call for comments.

“I just thought it was my duty to notify people. ... Let the chips fall where they may,” said Steele, who uses wood to help heat his own home.

IDEM's first notice of rulemaking was published here in the December 1, 2005 Indiana Register, following the procedures the General Assembly has established by law to provide public notice of agency rulemakings.

Environmental rulemakings are lengthly processes, designed to provide many opportunities for public input in development of a proposed rule, involving as many as three or more opportunities for written public comment, plus at least two public hearings.

In addition, as noted in the Dec. 1, 2005 1st Notice, "An external workgroup will be established to discuss issues involved in this rulemaking." This will allow for even more public participation.

Normally an IDEM rulemaking takes 18 months to 2 years to complete. The other agencies in state government conduct rulemaking under a different law, with rulemakings normally taking 4 to 8 months.

Here is a chart comparing the rulemaking requirements for IDEM with those that apply to other state agencies. And here is a more detailed 2-page chart of the IDEM rulemaking requirements, including cites to the relevant statutes.

Yesterday's ILB entry ("Sparks fly over outdoor wood-burning furnaces") includes links to several earlier ILB entries on this rulemaking, including this one from Dec. 5th titled "Wood-burning outdoor boiler catching heat," quoting from a well-written story from the South Bend Tribune, and including this photo of an outdoor wood-fired boiler in action.

Ind. Decisions - Supreme Court has posted again today

The Bass Lake Conservancy District imposed a sewer rate higher than the standard resi-dential rate on the home of Susan and John Brewer because the house had two kitchens and two laundry areas. The Brewers contend they are entitled to pay the standard rate because theirs is a single residence. We find the higher rate to have been within the District’s authority and its im-position on the Brewers’ home was not arbitrary, capricious, nor otherwise contrary to law. * * *

As we have noted, the Bass Lake Board acted within its authority in classifying as duplex or multi-plex any residential structure with more than one living area and separate cooking facilities. There is no dispute that the Brewer residence contained more than one living area and separate cooking facilities. Because the Brewers’ home fits the District’s criteria for classification as du-plex or multiplex under its sewer rate Ordinance, it was neither arbitrary nor capricious for the Board to classify their residence as such. Further, the Brewers do not contend they were treated any differently than the other ten properties in the District containing more than one living area and separate cooking facilities. Each of these homes was also classified as duplex or multiplex and billed for its sewage disposal accordingly. * * *

The trial court’s decision granting the Brewers’ motion for summary judgment is re-versed. The trial court is directed to enter summary judgment in favor of the Bass Lake Board.

Shepard, C.J., and Boehm and Rucker, JJ., concur.
Dickson, J., dissents believing the decision of the Court of Appeals to be correct.

Ind. Decisions - Court of Appeals issues four today [Updated]

Anthony Z. Banks appeals his conviction for Promoting Prostitution, a Class C felony. Specifically, he contends that the trial court erred in excluding his testimony concerning what a police officer told him during the undercover operation on grounds that it constituted hearsay. Because a statement made by a police officer within the scope of his employment constitutes a statement by a party opponent, the police officer’s statements in this case are not hearsay and were improperly excluded. However, in light of the evidence that Banks was able to present to the jury regarding his version of the events, the error is harmless. We therefore affirm.

Ricky Smith appeals his conviction for Stalking as a Class C Felony, arguing that the trial court erred in admitting the cell phone records of his victim. Alternatively, Smith argues that his sentence is inappropriate in light of the nature of the offense and character of the offender. Finding that the cell phone records were properly admitted and that the sentence is appropriate in this case, we affirm.

[Update] The 12/31/05 Evansville Courier& Press had a report on this decision.

On Nov. 29th the Supreme Court send Joseph Kincaid v. State of Indiana back to the Court of Appeals to consider his Blakely claim. Today's decision by Judge Sharpnack does so, and affirms Kincaid's sentence.

Having determined the trial court correctly considered Rhoades a licensee, we must now determine whether the trial court properly determined that Heritage was entitled to judgment as a matter of law on the issue of whether it breached the duty it owed to Rhoades. A landowner’s only duties to a licensee are to refrain from willfully and wantonly injuring the licensee and to warn the licensee of any latent danger on the premises of which the owner has knowledge. Wright v. Int’l Harvester Co., Inc., 528 N.E.2d 837, 839 (Ind. Ct. App 1988), trans. denied.

Here, Rhoades has failed to show or even allege that Heritage renovated the building and rebuilt the stairway with the wanton and willful intent to injure Rhoades or anyone else. Rather, Rhoades’ sole contention is that there is a genuine issue of fact regarding whether the stairway, which was dimly lit and lacked guardrails and handrails, constituted a latent danger. Latent is defined as concealed or dormant. Black’s Law Dictionary 898 (8th ed. 2004). In his deposition, Rhoades admitted that he knew that the building was dimly lit and the staircase lacked guardrails and handrails before he ascended it. He cannot now argue that these alleged defects were latent dangers. Undisputed facts found in the designated materials support the trial court’s determination that, as a matter of law, Heritage did not violate any duty owed to Rhoades as a licensee. We therefore conclude that the trial court properly entered summary judgment in favor of Heritage. Affirmed.

Marvin Bieghler remains convicted of two murders and sentenced to death after having completed the judicial review to which he is entitled as a matter of right. After the State moved to set an execution date, Bieghler tendered papers asking permission to litigate three additional claims concerning Indiana’s lethal-injection method of execution, the length of time since his conviction, and the evidence of his guilt. Because we conclude Bieghler has not shown a reasonable possibility he is entitled to relief on any of these claims, we deny his request to litigate them. A date for execution of the sentence will be set by separate order.

Law - Digital Documents and Technical Obsolescence

Yesterday the ILB highlighted this side-bar to the Indianapolis Star story about state representative Phyllis Pond:

Storage of courthouse records: Pond said counties are becoming overwhelmed by reams of records, but moving them to computer disk may not work since technology is changing so fast that the right equipment might not always be available to read the disks. She's planning to sponsor legislation pursuing alternatives.

Today the Wall Street Journal has a freely accessible feature story on this issue, headlined "Oh, Has Uncle Sam Got Mail: As Digital Documents Pile Up, The National Archives Worries About Technical Obsolescence." Some quotes:

[T]echnology is becoming obsolete so fast that electronic documents created today may not be legible on tomorrow's devices, the equivalent of trying to play an eight-track tape on an iPod.

"We don't want to turn into a Cyber-Williamsburg, a place that keeps old technologies alive," says Kenneth Thibodeau, director of the Electronic Records Archives Program, referring to the living museum in Virginia where people and homes look as they did in the 18th century. Thus, the Archives is struggling to devise a system for storing the enormous amount of digital information in a format that will allow it to be accessed 20, 75, even 200 years from now by historians, students and average Americans looking for a first-hand accounts of the federal government's activities.

"There can't be an archive for the 21st century if we don't get on top of the problem," says Mr. Thibodeau, who has been pushing the Archives toward addressing this issue for the last 17 years. "If we can't preserve it, we're going to lose it."

More from this important article:

[F]or now, at least, the Archives uses electronic storing methods similar to those adopted in the 1960s and 1970s, transferring data onto magnetic tapes because that is the only format the archivists know will work indefinitely. But they say the process is labor intensive and time-consuming depending on how the information was saved. For example, one million emails could be copied onto tape in 10-15 minutes, but if they are saved as individual files it takes about 50 hours, says Mr. Thibodeau. A team of workers has been converting the 9-11 commission documents for more than a year and they aren't halfway through, say Archives officials, who estimate it will take several more years to complete the task.

Part of the impetus for wanting to come up with a comprehensive strategy for digesting electronic records is the desire to make them accessible via the Internet. * * *

The Archives recently awarded Lockheed Martin Corp. a $308 million, six-year contract to work on creating a system for saving and accessing electronic data over time. Lockheed officials have recommended using a handful of widely accepted formats such as the popular Internet software language HTML to save information and using digital adaptors to translate that into a new language when it becomes obsolete, says Clyde Relick, the program director for the Lockheed Electronic Records Archive team.

Why not just print out everything on paper and preserve it the old-fashioned way? For one thing, federal law requires that government documents be kept in their original formats to verify authenticity -- particularly documents that may be used in court. For another, at the rate that government records are growing, producing paper copies could easily overwhelm the Archives's capacity to store.

Law - Redistricting, before the Supreme Court again this spring

Currently on C-SPAN: 9:00-9:30 a.m. Tim Storey, National Conference of State Legislatures, Redistricting Director, talking about the Texas redistricting case the U.S. Supreme Court will hear this spring. You will be able to watch it here, later.

Not Law but History II - Especially to those of us who dined there

Following up on this Sept. 2, 2005 ILB entry on the renaming of Marshall Field's downtown department store to Macy's, is another sad story today. The Chicago Sun-Times headline is: "Chicago institution The Berghoff Restaurant closing after more than 100 years." Some quotes:

CHICAGO (AP) -- It's hard not to feel a sense of Chicago's history inside the 107-year-old Berghoff Restaurant, where hand-painted murals depict the 1893 World's Fair and the city's first post-Prohibition liquor license proudly hangs.

But in a few months The Berghoff - one of this food-loving city's oldest and most beloved restaurants - will become history itself, leaving its hordes of devoted patrons crying in their German lager.

Third-generation owner Herman Berghoff, 70, announced Wednesday that he and his wife, Jan, will close the restaurant in February. Their retirement will dim the lights on a Chicago institution that has quenched cravings for warm apple strudel and cold beer for generations of tourists and trade workers, politicians and lawyers. * * *

It's the second blow to a city already saddened by news that its venerable Marshall Field's downtown department store will be renamed Macy's after being bought by the Cincinnati-based Federated Department Stores Inc.

U.S. District Judge David Hamilton rejected arguments by House Speaker Brian Bosma, R-Indianapolis, that Hamilton's ruling was too vague to enforce. And Hamilton issued a warning:

"If the speaker or those offering prayers seek to evade the injunction through indirect but well understood expressions of specifically Christian beliefs, the audience, the public, and the court will be able to see what is happening. In that unlikely event, the court will be able to take appropriate measures to enforce" the injunction. * * *

Despite Hamilton's intent to also prevent the promotion of non-Christian religions, Bosma had asked for clarification on whether the prohibition "refers to Christendom as a whole, or is more limited and means only that there should be no appeals on behalf of Methodism, Presbyterianism, or Roman Catholicism, for example."

Responded Hamilton in Wednesday's ruling: "This later question seems to reflect almost a willful obtuseness. As is evident through the opinions of this court and other courts . . . official prayers that endorse Christianity in general violate the Establishment Clause. The Establishment Clause is not limited to preferences for particular Christian denominations."

Wednesday, December 28, 2005

Here is the background: The Pennsylvania judicial retention vote in November turned on a "midnight pay raise" passed by the Pennsylvania legislature that included raises for the judges. The result was one Supreme Court justice being turned out of office last month via the 10-year "yes or no" retention ballot. After viewing those election results, the Pennsylvania General Assembly retreated last month and repealed the pay raise. There was speculation that a judge might sue and sure enough, as reported in this ILB entry from Dec. 6th, several judges filed suit to restore their pay hikes. See also this entry from Nov. 19th.

"Pa. Supreme Court takes up pay-raise lawsuits" is the headline to an AP story dated Dec. 27th via PennLive.com. Some quotes:

PHILADELPHIA (AP) — The Pennsylvania Supreme Court has agreed to consider whether the pay raise law that passed last summer — and was repealed last month — was constitutional, and whether state and county judges should get the additional salary anyway.

The court on Thursday said it would hear two cases — a challenge by political activist Gene Stilp that had been dismissed as moot by Commonwealth Court, and a Commonwealth Court lawsuit by a judge seeking to reinstate the higher judicial salaries.

The order indicating the court will take the cases, in which Chief Justice Ralph J. Cappy did not participate, said the justices will review the propriety of how the Legislature passed the law giving pay raises to officials in all three branches of state government.

The court said it wants to consider whether it is legal for lawmakers to collect their own raises immediately in the form of "unvouchered expenses," rather than wait until their next election, as the state constitution requires.

The case also will examine whether the law ran afoul of requirements in the state constitution that laws reflect a bill's original purpose, that legislation be put before a committee before it goes before the entire Legislature, and that bills must pertain to a single subject and be considered on three separate days.

The justices also will decide whether the pay-raise repeal violated the state constitution's requirement that judges' pay not be diminished "during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth."

The court also said it would consider whether the pay-raise repeal was "nonseverable," meaning that if they throw out a portion of it the whole law could be invalidated, restoring all pay raises. * * *

The July 7 pay-raise law, passed in the dead of night without debate or public input, increased the salaries of more than 1,300 judges, lawmakers and senior executive branch officials. All judges — from district court to the Supreme Court — got pay raises of 11 to 15 percent, and state legislators increased their own pay by up to 54 percent.

Particularly interesting to watch will be these issues:

"[W]hether the law ran afoul of requirements in the state constitution that laws reflect a bill's original purpose, that legislation be put before a committee before it goes before the entire Legislature, and that bills must pertain to a single subject and be considered on three separate days."

"[W]hether the pay-raise repeal violated the state constitution's requirement that judges' pay not be diminished 'during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.'"

Both relate directly to the doctrine of separation of powers.

Are the requirements set out under the first bullet-point procedural or substantive? Or are some clearly procedural, such as the requirement that a bill be read on three separate days, and others arguably substantive, such as the requirement that the bill be confined to one subject. Court have generally held that a legislative body is the judge of its own procedures, under the doctrine of separation of powers.

The second bullet-point is discussed in this Nov. 19th ILB entry, which includes a comparison of the Indiana and Pennsylvania constitutional prohibitions against reducing judges' salaries.

Ind. Decisions - More on: Judge allows takeover of state center to proceed

This is the case involving, according to the Fort Wayne Journal Gazette story at the time, an effort to "temporarily stop the takeover of the center and to force the state to go through a bidding process before giving control to a private company." For more information, see this ILB entry from Dec. 23, 2005.

Plaintiff Michael Joseph attended college at the University of Wisconsin (“University”). He has completed his studies, but still owes the University over $18,000 in tuition. He alleges that the University violated his constitutional rights by charging him out-of-state tuition while he was a student. He also claims that the tuition reciprocity agreement between Wisconsin state colleges and Minnesota state colleges is unconstitutional.

The defendant, the Board of Regents of the University of Wisconsin System, claims that the suit is barred by the Eleventh Amendment, or, in the alternative, that it is without merit. The defendant has also moved to sanction the plaintiff’s attorney for filing a frivolous appeal. The district court ruled that Joseph’s suit was barred by the Eleventh Amendment. For the following reasons, we now affirm the district court’s judgment and deny the defendant’s request for sanctions.

Kari Sehie, a former emergency dispatcher for the City of Aurora (“Aurora”) [Illinois], sued her former employer for claims arising from the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 207, 216 (2005). The parties stipulated to the facts and the district court entered judgment in favor of Sehie. The issue before us is whether the time Sehie spent attending and traveling to and from counseling sessions that Aurora mandated are compensable under the FLSA. We agree with the district court that this time is compensable, and affirm.

USA v. Gougis, Coleman and Brown involves Illinois defendants who were current or former law enforcement officers and were targeted in a sting operation set up by the government with the help of a confidential informant. Affirmed.

Ind. Decisions - Court of Appeals posts three

Appellant-defendant Joe Robbins appeals from the sentence imposed by the trial court after Robbins pleaded guilty to two counts of Child Molesting,1 a class B felony. In particular, Robbins argues that his sentence violated the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and that his sentence is inappropriate in light of the nature of the offense and his character. Finding that Robbins is not entitled to raise a Blakely challenge and finding that his sentence is appropriate, we affirm the judgment of the trial court. * * *
Blakely v. Washington Challenge. * * * As to whether Robbins’s case was “final” when Blakely was decided, we note that a timely notice of appeal is filed within thirty days after the entry of a final judgment. Ind. Appellate Rule 9(A)(1). While Robbins still had the option of pursuing a belated appeal at the time that the Blakely rule was announced, it is our conclusion that because his right to pursue a timely appeal had lapsed over four years prior to Blakely, his case was final for the purpose of retroactivity. Accordingly, we conclude that Robbins is not entitled to raise a Blakely challenge because Blakely does not apply retroactively to Robbins’s case. * * *

Challenges to Sentence. * * * Robbins’s lack of a significant prior criminal history is of no moment, inasmuch as his behavior toward his daughter and stepdaughter make it apparent that his character renders the maximum sentence more than appropriate. In sum, we conclude that the trial court’s sentence is entirely appropriate in light of the nature of the offense and Robbins’s character.

York Linings International, Inc. (“YLI”) brings this interlocutory appeal of the trial court’s order that granted the motion by Harbison-Walker Refractories Company (“H-W”) to dismiss YLI’s counterclaim in recoupment. We affirm.

Because the warrant was sufficiently specific in its description of the kind of records to be searched for, and the affidavit described whose crack sales were to be investigated, the warrant was valid to search and seize "crack cocaine and records pertaining to the sale of crack cocaine" by Curry and Watkins. However, our analysis does not end there. * * *

The record indicates that the mail from OFC belonged to Figgures, not Watkins, and, as such, she had a reasonable expectation of privacy. When Shake realized that Watkins was not the sole resident of 214 N. 12th Street and that Figgures occupied a bedroom, he should have refrained from opening and reading Figgures' mail. Bank statements may have relevance to records pertaining to the sale of crack, but when Shake opened and began reading Figgures' mail from OFC and seized and read her bank statements, he was no longer looking at records related to the investigation of Watkins' crack sales. Figgures' mail was irrelevant to the criminal activity being investigated and alleged in the search warrant and, therefore, was outside the warrant's scope. While the warrant empowered the police to search for and seize records pertaining to the sale of crack cocaine in the investigation of Watkins, it did not authorize any general, exploratory search of Figgures' personal mail.

Furthermore, the plain view doctrine may not be invoked to justify the seizure of Figgures' mail. * * *

Because the seizure of Figgures' mail and bank statements was illegal, any evidence produced as a result should be suppressed. "[U]nder normal Fourth Amendment principles, evidence obtained in the course of an illegal search is not admissible in a subsequent criminal proceeding." * * * Because the illegal search and seizure of Figgures' mail and bank statements were the basis for the subsequent fraud investigation by OFC, Figgures' bank account records obtained through OFC's subpoenas to the banks are fruit of the poisonous tree and must be suppressed.

Nevertheless, the State asserts that even if the seizure was found unlawful, the good faith exception applies. We disagree. * * *

Although we find that the warrant was valid, we find that the officers were acting outside the scope of the warrant in opening and reading a letter to Figgures from OFC and the seizure and opening of her bank statements, which could have no link to crack sales by Watkins and whose illegality was not immediately apparent. Therefore, the good faith exception cannot apply. Affirmed.

Ind. Courts - DeKalb County has new prosecutor

The Fort Wayne Journal Gazette reports today, in a story by Kara Hull, datelined Auburn, that:

DeKalb County Republican precinct representatives had no trouble picking a new prosecutor Tuesday night even if a slight snafu caused temporary trouble counting the ballots.

ClaraMary Winebrenner received the 19 votes she needed to become DeKalb’s next prosecutor during the first voting round at the Republican caucus at the World War II Victory Museum. One ballot for Winebrenner got stuck in the ballot box.

Party leaders started passing out green ballots for the second vote when party Chairman Dean Kruse pointed out that the number of ballots counted didn’t match the number of voters present.

Winebrenner, a deputy prosecutor in the county since 1999, will replace longtime Prosecutor Monte L. Brown, who will become judge of DeKalb’s newly created third court Sunday. * * *

Winebrenner was a deputy prosecutor for the county from 1990 to 1993. From 1989 to 2001, she worked in private practice in Auburn. Since 2001, she has been an attorney with VanHorne Law Office in Auburn.

“I was definitely excited,” she said. “This had been my dream for a long time.”
Winebrenner plans to run for prosecutor in the Republican primary election in May. The office will be up for grabs again in the 2006 elections.

Law - Kentucky Governor Fletcher to pick 2 judges in case about himself

More on the continuing Kentucky investigation of Governor Fletcher's alleged violation of the state's merit hiring laws. Today the Louisville Courier Journalreports:

Two Kentucky Supreme Court justices have removed themselves from a case involving the state hiring investigation, after the court was asked to settle a dispute over Gov. Ernie Fletcher's pardon power.

The double vacancy sets in motion a little-used process under which the state constitution allows Fletcher to appoint temporary judges to fill the seven-seat bench and preside over the case in question.

But Attorney General Greg Stumbo's office, which is leading the merit hiring investigation, said it was concerned that Fletcher would have power to pick the judges who will decide his own case.

Ind. Courts - Lawyer’s lapse spurs license loss

"Lawyer’s lapse spurs license loss" is the headline to this story today in the Gary Post-Tribune. It begins:

A Gary attorney who successfully argued that an overzealous prosecutor led to his unfair indictment in 2003 has now indefinitely lost his law license.

According to a notice from the Supreme Court of Indiana dated Dec. 21, Jerry T. Jarrett failed to file a response to a grievance filed against him in April. His failure to respond has forced the court to convert his suspension to an indefinite suspension.

Jarrett, a prominent Gary attorney, was indicted in 2003 while he was involved in a high-profile case. He successfully argued that the charges filed against him were a way for the government to have him removed from that case.

Ind. Law - Idea that landed with biggest thud of the year

"Criticism continues for ISU law school proposal" is the headline to this AP story today, via the Louisville Courier Journal. Some quotes:

TERRE HAUTE, Ind. (AP) -- An attorney and former member of the state's higher education commission has told Indiana State University administrators that he believes they should not pursue a proposal to start a new law school.

Frank Bauer, who was a higher education commission members for 30 years, told Indiana State President Lloyd Benjamin that school should consider creating programs in health care instead of studying whether to create a new law school.

"Many feel we have too many lawyers already," Bauer wrote in a letter to Benjamin. "... In my view, new programs, new campuses and new schools should be primarily driven by demands of the marketplace and not by the demands of a potential student body."

ISU officials announced this month that were conducting a feasibility study to explore whether the university should start the state's third public law school.

Ind. Gov't. - Indy Star features state rep. Phyllis Pond in front-page story

Mary Beth Schneider of the Indianapolis Star has a front-page feature this morning on State Rep. Phyllis Pond. The headline to the lengthy story: "Lawmaker is first lady of the front row: State Rep. Phyllis Pond's 27 years include few foes but enough grit to defy her party on occasion." It begins:

On Jan. 4, state Rep. Phyllis Pond will regularly see something from her seat in the Indiana House that no woman ever has -- a clear view. The New Haven Republican is the first female lawmaker to reach the front row.

Pond, 69, the longest-serving woman in the Indiana legislature, landed a seat in the front of the 189-year-old Indiana House, a section that until now has been an all-male sanctuary. This power row is reserved for House leaders or representatives with the most seniority.

The nine-row journey from the back to the front took more than 27 years for Pond, an Allen County resident first elected in 1978. It's been an 86-year trip for women, who have been literal back-benchers in the legislature since Julia Nelson was appointed as the first female lawmaker in 1920.

Pond's legislative priorities have included education and family issues, including a position that an abortion decision is up to the pregnant woman until the fetus is viable.

The lawmaker is not the highest ranking of the 13 women in the legislature. Women hold some leadership positions, such as Rep. Kathy Richardson, R-Noblesville, the House majority caucus chair.

The story ends with this:

Pond, while generally a reliable Republican vote in the legislature, is willing to go against the traditional GOP base to follow her conscience, including on abortion.

"My position is the woman is the one who decides up until the fetus is viable," Pond said. "The far right doesn't like it. They call me pro-abortion. I'm not."

That is just one area in which Pond believes women bring a different and needed perspective to the legislature.

In 1978, when Pond was first elected, she was one of only eight women in the 100-member House. When the House gavels into action Jan. 4, she'll be one of 13 women.

"I thought there'd be a lot more," Pond said.

So did I.

A side-bar lists issues Pond will pursue this year. Among them:

Storage of courthouse records: Pond said counties are becoming overwhelmed by reams of records, but moving them to computer disk may not work since technology is changing so fast that the right equipment might not always be available to read the disks. She's planning to sponsor legislation pursuing alternatives.

Tuesday, December 27, 2005

Ind. Courts - Effort is being mounted to consolidate all six of the courts in Madison County under one administrative umbrella

Ken de la Bastide has an extended report today for the Anderson Herald Bulletin. Some quotes:

An effort is being mounted to consolidate all six of the courts in Madison County under one administrative umbrella.

Legislation is expected to be introduced during the 2006 legislative session to make all the Madison County courts divisions of Circuit Court.

Currently, the three Superior and two County courts operate as the Unified Court System with a central administration overseeing the budget and operations.

The five judges in the Unified Court System support the consolidation, as well as the Madison County Bar Association, consisting of local attorneys and Prosecutor Rodney Cummings. Circuit Court Judge Fred Spencer opposes it.

A similar effort was made to make the six courts divisions of Circuit Court in the 1980s, but it was defeated in a Senate committee.

Sen. Tim Lanane, D-25th District, said he has been contacted about sponsoring the legislation.

“I would hope the judges will come to some agreement,” he said. “I’m more than willing to carry the bill if there is a consensus among the judges.”

Spencer said only Monroe and Delaware counties have a Circuit Court with a number of divisions.

“There is an effort to adopt the Monroe County plan instead of having Circuit and Superior courts as in every other county,” Spencer said.

a suit by
producers and suppliers of “weed and feed” products
against the City of Madison and the county (Dane) in which
Madison is located. Weed and feed products are lawn-care
products each granule of which contains both a herbicide
and a substance, such as phosphorus, that fertilizes. Though
not without its critics, this ingenious combination—“sold by
the chemical industry to homeowners as the magic bullet of
turf care,” * * * “saves time and labor” and provides “greater safety since there is less chance
of an incorrect dosage [of pesticide] being applied.” * * * However, Madison and Dane
County have enacted ordinances forbidding (with irrelevant
exceptions) the sale or use of fertilizers that include more
than trace amounts of phosphorus, Madison General
Ordinances §§ 7.48(3), (6); Dane County Ordinances §§
80.05, 80.07—as the plaintiffs’ weed and feed products do.
Though an excellent fertilizer, phosphorus is also a pollutant
that “contribute[s] to excessive growth of algae and
other undesirable aquatic vegetation in water bodies.”

To comply with the ordinances, the plaintiffs have had
to reconstitute their weed and feed products to eliminate the
phosphorus. Invoking a variety of federal and state legal
theories, their suit seeks a declaration that the ordinances
are invalid. The defendants moved for summary judgment,
which was granted. The only claim pressed in this appeal is
that the ordinances are preempted by a Wisconsin state
statute that, with irrelevant exceptions, forbids a city or
county to “prohibit the use of or otherwise regulate pesticides.” * * *

The defendants point out, without contradiction, that
it makes practical sense to allow local regulation of phosphorus
because the effects differ from county to county
depending on the number and importance of a county’s
lakes and other bodies of water, not to mention the number
of geese and other contributors to phosphorus pollution.
So our interpretation of the statute, which is the natural
interpretation as a semantic matter and has the further
virtue of closing a regulatory loophole, cannot be rejected on
the ground that it produces absurd or unreasonable results,
which the Wisconsin legislature is unlikely to have intended. * * * Quite the
contrary, it produces sensible results.

Ind. Decisions - Four Court of Appeals opinions today

City of East Chicago v. Anthony Copeland, et al., a 13-page opinion by Judge Robb, concerns whether a City of East Chicago violated its salary ordinance by denying certain firefighters vacation hours over a period of several years. Affirmed.

The Gary Community School Corporation (the “Gary Schools”) appeals the trial court’s order of a condition on the Gary Schools to contribute additional money to the Health and Insurance Trust Fund for service employees in connection with the grant of a temporary restraining order and preliminary injunction. The injunction enjoined the Service Employees International Union Local 73, AFL-CIO and its members, non-teacher employees of the Gary Schools, from striking. Because the injunction was solely enjoining an illegal strike, as the employees are public employees, the trial court abused its discretion in imposing the contribution condition on the Gary Schools. We therefore affirm in part and reverse in part.

In Kevin D. Miller v. Cynthia Reinert and Angela Miller, Judge Robbs writes that Miller, representing himself, initiated the instant lawsuit against his ex-wife Angela and her attorney Reinert alleging “Abuse of Process, Libel Per Se and Negligence . . . from [the] publication of unprivileged, false, and defamatory statements in an appellate brief to the Indiana Court of Appeals.”

Kevin filed a motion for partial summary judgment on the issue of liability for his claims of abuse of process and libel per se. Angela and Reinert filed a consolidated response to Kevin’s motion for partial summary judgment. They also moved for dismissal of his complaint and assessment of damages and fees. After a hearing, the trial court denied Kevin’s motion for partial summary judgment and granted Angela and Reinert’s motion to dismiss. The trial court also ordered Kevin to pay Reinert’s attorney’s fees of $8,379.69 pursuant to Reinert’s request for fees. Kevin now appeals. * * *

This court has already determined that the statements made in the Appellee’s Brief were both pertinent and relevant to the litigation, as evidenced by the fact that some of the information was included in the opinion and by the fact that Kevin’s motions to strike the statements from the brief and from our opinion were denied. Reinert presented her client’s case in the way she thought most effective. Within the bounds of the rules of professional responsibility, she had no duty to consider what was best for Kevin. There is no evidence that Angela or Reinert included the statements at issue herein in the Appellee’s Brief with malice or with any motive other than elucidating the court. Moreover, there is evidence before the court that the statements were in fact true. Kevin’s complaint has thus failed to state a claim upon which relief could be granted. * * *

Kevin also contends the trial court erred in ordering him to pay Reinert’s attorney’s fees. The trial court entered an order that Kevin pay $8,379.69 to Reinert’s attorney on Reinert’s request for fees. Kevin contends that the order is improper. * * *

The trial court properly granted Angela and Reinert’s motion to dismiss because Kevin has failed to state a claim upon which relief could be granted. The statements that are the subject of Kevin’s complaint are protected by an absolute privilege for pertinent and relevant statements made in the course of judicial proceedings. However, because Kevin’s claims were not frivolous, the trial court erred in awarding attorney’s fees. We therefore reverse that part of the trial court’s order that requires Kevin to pay Reinert’s attorney’s fees, and affirm the remainder of the order.

Courts - Year-end report on Grant County courts

"THE YEAR IN REVIEW: Tight docket, budget limit courts - Retiring judge: 2005 caseload 'a grim picture'" reads the headline to a story by Katie Albright in today's Marion Chronicle-Tribune. A few quotes from a lengthy story:

"There was an enormous increase in criminal caseloads," Grant Circuit Court Judge Thomas Hunt said. "It was very straining for us, fiscally as well. The county is in a terrible financial situation."

In September, the Grant County Council decided in a 5-2 vote to cut the county prosecutor's budget in 12 areas, including everything from the office telephone to education and training. * * *

And all the problems facing the Grant County judicial system are being fed by crime.

"In 2004, we had 382 major felony cases filed in Superior Courts 1 and 2 by the end of the year," he said. "We have 375 cases filed this year so far, and we could have several more filings by the end of it all. For a small staff, that's a big challenge."

Luttrull also asked the council to restore another deputy prosecutor position in the same September council meeting, which he said could help with the overflow of cases. After a short hiring freeze, the council and the Grant County commissioners approved his request.

"I'm looking forward to hiring replacements for vacancies we've had this year," he said. "I'm excited to introduce new individuals to the prosecution office."

In the same council meeting, Superior Court 3 Judge Natalie Conn and Circuit Court judge Hunt presented their budgets, resulting in jury expenses being moved and handled through the Supplemental Public Defender fund.

Hunt said the court budget has been about the same for many years, and the financial problem is more complex than a few appropriations. "At some point (the council) will have to bite the bullet and prioritize."

Hunt said the courts have had to shift caseloads to outside offices and pay private attorneys hourly wages to handle the cases in order to avoid running over their allotted maximum number of caseloads per office. He added the council is not reimbursing costs for this action.

"We're bursting at the seams with caseloads," he said. "It's not like we can turn business away. It's a very grim picture."

Hunt said the stress is one of the reasons he decided not to run for office again in 2005, ending a 25-year judicial career. He announced his decision in mid-July.

Ind. Gov't. - Zoning and code enforcement in Elkhart

The Elkhart Truth is publishing a series this week by Jason McFarley on city zoning and code enforcement. A catalyst for the series may be the incident reported in this story, headlined "Ex-resident of illegal rental house awaits trial: Husband of murder victim says enforcement was too little, too late." Some quotes:

ELKHART -- Mike Reed says enforcement against an illegal rental house in his neighborhood was too little and tragically too late.

When he and his wife, Dani, moved into their Riverside Drive home about six years ago, they thought the house next door was a duplex. As he met more of the tenants, many of whom he said had just gotten out of jail or were otherwise "trying to get back on their feet," Reed began suspecting he lived next to a halfway house.

His wife was unfazed by the neighbors. She took leftover food to them, invited them inside to use the phone and found odd jobs for them around the house. * * *

Jeremy Ratliff, a former resident of the house next door to the Reeds, is accused of strangling the 65-year-old woman at her home Nov. 7. He is in Elkhart County Jail awaiting a June trial on the murder charge.

The city had earlier identified Ratliff's former residence at Riverside Drive and Strong Avenue as an illegal rooming house and had set a late-November deadline for the owner of the property to make it comply with the single-family zoning that was in place.

"Changing Places: Under one roof - Some landlords don't know they're breaking a law with rental properties" is the headline of this lengthy story from Dec. 26th. It begins:

ELKHART -- The house had been the same for as long as Tom Casey could remember, and certainly for the 20 years he had owned it at the time. On the first floor, he rented up to five sleeping rooms to tenants who shared a kitchen and a bathroom. Upstairs was a separate two-bedroom apartment.

The accommodations, Casey said, were no secret to neighbors or to the Elkhart Building Department, whose officials had signed off on various permits Casey had sought for the house through the years. The landlord reasoned he was going by the book.

About a year ago, city zoning officials informed him otherwise. Though the house in the 600 block of West Lexington Avenue was meeting certain city legal requirements, it had long been violating another one: the zoning ordinance, which allows only single-family housing in that neighborhood of large, old homes along the St. Joseph River.

"I never hid it from the city," Casey said of his building's use, which came to the zoning office's attention by way of an agency where one of Casey's tenants had applied for rent money. "They told me I have to change it. I'm working on it."

Today's story is headlined "A code to live by: Code enforcement officers sometimes help zoning officials find illegal houses." Reporter McFarley takes you along on a ride with a code enforcement officer. Some quotes:

ELKHART -- Janet Bayes has a story about nearly every house her city government-issued car creeps past.

There was the one on State Street, where she and another code enforcement officer had to jump over some missing stairs to inspect the basement.

Nearby, she points out other buildings, one that needs a new foundation, another that is a reported drug house.

"You get to know the areas, the residents, the landlords pretty well. It becomes your territory," says Bayes, who has patrolled for violations of building and property maintenance codes for nearly 18 years, the past four in the city's northeast quadrant.

In fact, code enforcement officers' familiarity with neighborhoods sometimes helps city zoning officials discover cases of buildings being divided into more apartments or rooms for rent than permitted by ordinance.

Environment - Sparks fly over outdoor wood-burning furnaces

"Sparks fly over wood-burners" was the headline to this comprehensive story by Mike Lewis in the Dec. 26th Bedford Times-Mail. Some quotes:

Debate is heating up about a state plan to regulate outdoor wood-burning furnaces. “People are complaining about the smoke emitted from these units,” said Sean Gorman of the Indiana Department of Environmental Management.

Those complaints about pollution sparked the state's concern and started the rule-making process. But the proposed rules have already drawn fire from state lawmakers.

“Many homes in my district have efficient wood-burning furnaces and there is, to my knowledge, no empirical data that supports the notion that wood smoke is more harmful than conventional heating methods,” replied state Rep. Eric Koch, R-Bedford, in a letter to IDEM. The proposed rules, he wrote, “run contrary to our efforts to promote alternative sources of energy.”

The proposal also lit up the concerns of state Sen. Brent Steele, R-Bedford, who said he had a hard time tracking down information on the proposal. “I don't know, really, what's up,” Steele said. “I just noticed they were in a rule-making process, and I couldn't figure out what they were trying to do. ... It dawned on me if it was that hard for me as a senator to find out what was going on, the average person probably didn't know about it.” * * *

At issue are the outdoor units that are becoming more popular for heating homes and other structures. In some instances the units heat air. Others (outdoor boilers) heat water. IDEM's proposed rules would consider furnaces and boilers to be the same as far as regulating smoke.

IDEM's Gorman said indoor units (such as indoor wood stoves and fireplace inserts) already must meet U.S. Environmental Protection Agency rules. But there are no regulations for outdoor units.

IDEM reports receiving “numerous complaints concerning outdoor furnaces in residential areas.” According to Gorman and the proposed IDEM rules, there are at least a couple of concerns with outdoor units.

Smokestack height: The smokestack heights of outdoor units typically range from eight to 10 feet above the ground. That allows smoke to hover near the ground more readily. (The chimneys for indoor units extend above the roof line, typically 20 feet or more off the ground.)

Incomplete combustion: According to IDEM, “the basic design of outdoor furnaces causes fuel to burn incompletely, or smolder, which can result in thick smoke and high particulate emissions. ... The smoke drifts across property lines and penetrates adjacent structures. It can also drift across nearby roadways and block visibility for drivers.”

IDEM reports the smoke from outdoor furnaces includes ash and particles as well as carbon dioxide and “volatile organic compounds” like formaldehyde and benzene. Gorman stressed that IDEM's proposal is a long way from reality. The agency is seeking public comment.

Ind. Gov't. - Dept. of Insurance Site Stirs Controversy

The new (Dec. 26-Jan. 1) issue of the Indianapolis Business Journal has a front-page story on the new Indiana Department of Insurance website. The healine is "Web site stirs controversy: Watchdogs pan Insurance Department's pro-business stance." The lead:

Consumer watchdogs are howling over a revamped state Insurance Department Web site that pitches Indiana's "positive regulatory climate" and other business-friendly attributes. The site's new look debuted a few weeks ago and aims to make companies think about moving to Indiana, Insurance Commissioner Jim Atterholt said. But critics say a regulator should never play the role of recruiter, and the approach sends the wrong message to consumers seeking help.

An Adam Liptak article in the NY Times today (also reprinted in a shortened version here in the Indianapolis Star) reports that:

Federal appeals court judges around the nation have repeatedly excoriated immigration judges this year for what they call a pattern of biased and incoherent decisions in asylum cases.

In one decision last month, Richard A. Posner, a prominent and relatively conservative federal appeals court judge in Chicago, concluded that "the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice."

That ruling was reported in this ILB entry - the case was Benslimane v. Gonzales.

More from the Liptak article:

[C]riticism can be very sharp, particularly given the temperate language that is the norm in the federal appellate courts.

In the Philadelphia decision in September, Judge Julio M. Fuentes of the United States Court of Appeals for the Third Circuit had this to say about Annie S. Garcy, an immigration judge, or I.J., in Newark: "The tone, the tenor, the disparagement, and the sarcasm of the I.J. seem more appropriate to a court television show than a federal court proceeding." * * *

In another decision, Judge Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said a decision by Nathan W. Gordon, an immigration judge, was "literally incomprehensible," "incoherent" and "indecipherable." A crucial sentence in Judge Gordon's decision, she said, "defies parsing under ordinary rules of English grammar." * * *

Mary M. Schroeder, the chief judge of the Ninth Circuit, which hears almost half of all immigration appeals, said the current system was "woefully inadequate."

Immigration judges, she said, "are very unevenly qualified, and they work under very bad conditions."

The people who appear before immigration judges often do not speak English, and their cases often turn in part on changing political and social conditions around the world. In a decision in March, Judge Posner wrote that immigration judges' "lack of familiarity with relevant foreign cultures" was "disturbing."

Judge Slavin, who sits in Miami, disagreed, saying she and her colleagues often had a sophisticated understanding of conditions in the most relevant countries, which are China for immigration judges in New York and Philadelphia; Eastern Europe for those in Chicago; Haiti, Columbia and Venezuela for those in Miami; and Central and South America for those in California.

"I know more about Haitian politics than the people coming before me," Judge Slavin said. But she acknowledged both the difficulty and the importance of her work.

"Immigration law can be life-or-death decisions in terms of whether you're going to send someone back to a place where they may be killed," Judge Slavin said. "I have over 1,000 cases on my docket. Most of us do about four decisions a day. In Texas, on the border, you might get 10 a day."

Judges at the top and bottom of the system blame the administrative body between them, the Board of Immigration Appeals, for the surge in appeals and the mixed quality of the decisions reaching the federal appeals courts. The board is meant to act as a filter, correcting erroneous or intemperate decisions from the immigration judges and providing general guidance. The losing party can appeal the board's decision to the federal courts.

But the board largely stopped reviewing immigration cases in a meaningful way after it was restructured by Mr. Ashcroft in 2002, several judges said.

Mr. Ashcroft reduced the number of judges on the board to 11 from 23. "They just hacked off all the liberals is basically what they did," said Ms. Rosenberg, who served on the board from 1995 to 2002.

Mr. Ashcroft also expanded the number of appeals heard by a single board member and encouraged the use of one-word affirmances in appropriate cases.

The goal of the changes, Mr. Ashcroft said, was streamlining. The board had a backlog of more than 56,000 cases, which fell to 32,000 by September 2004.

At a conference at New York Law School in September, John M. Walker Jr., the chief judge of the United States Court of Appeals for the Second Circuit, in New York, said the changes at the board level served to transfer its backlog to his court and other federal appeals courts.

"He just moved the problem from one court to another court," Judge Walker said of Mr. Ashcroft.

This criticism of immigration judges is not new, however. Here is a quote from the beginning of a report in Siskind's Immigration Bulletin:

The San Jose Mercury News recently [it was in 2001] released the results of its study of asylum adjudications. The study, conducted with information gathered through a Freedom of Information Request, reveals what many instinctively knew about the asylum process – that whether a person is granted asylum depends less on the merits of the person’s case and more on the judge before whom they present their case. The paper examined 176,465 cases that came before the 219 Immigration Judges between 1995 and 1999.

Some judges granted asylum in half of the cases they heard, while other judges granted asylum in less than two percent of cases. Some judges even routinely deny asylum to applicants from countries such as Bosnia and Somalia, where conditions mean that most applicants are granted asylum. The INS does not evaluate judges on the basis of the rate at which they grant asylum, and do not keep records on how many of their decision are eventually overturned.

According to the Mercury News analysis, there was one factor that was key in determining how an Immigration Judge would rule according their legal background. Judges who worked in the private sector before being appointed granted asylum at a 50 percent higher rate than judges who had previously worked for the government. There are twice as many former government lawyers working as Immigration Judges as former private sector attorneys.

The Mercury News 10-part series, "Uncertain Refuge" by Frederic N. Tulsky, won a number of awards. I have, however, been unable to locate it online.

Law - Disbarred Kentucky lawyer turned legal publisher [More]

A don't miss story today in the Louisville Courier Journal. Some quotes from the lengthy feature by reporter Andrew Wolfson:

Shannon Ragland is publisher of the Kentucky Trial Court Review, an acerbic monthly newsletter for lawyers that documents the verdict in nearly every lawsuit tried in the state -- from the case of a man who slipped on a mashed kiwi at the Scottsville Food Lion to the $1,000-a-day Lexington stripper who was hurt in a car wreck and couldn't "go back to the pole."

Similar verdict reviews are published in dozens of other states, but what sets Ragland's apart is his background -- he's a disbarred lawyer and convicted felon -- and the fact that he adds his editorial 2 cents, teeing off on lawyers and judges alike for what he describes as strategic blunders, defective reasoning and deceit. * * *

Starting in Jefferson County with 75 subscribers, he launched his verdict report and eventually took it statewide. A yearly subscription is $175, and he now publishes similar newsletters in three other states and one on the federal courts, grossing about $150,000 a year in Kentucky alone.

He employs a staff of five, including a licensed lawyer he pays to write squibs about verdicts in Indiana and Alabama, and lives with his wife and two daughters in a $300,000 house in Northfield.

He said his unique status has given him the freedom to zing judges and lawyers without fear of being sanctioned. "What are they going to do," he asks, "disbar me?" * * *

Lawyers who both bring damage lawsuits and defend them say Ragland's review provides a valuable service by showing the real-world value of every conceivable injury -- from a catastrophic brain injury to a broken toe.

The Kentucky Trial Court Review also shows that most plaintiffs usually lose, especially in medical malpractice cases, and lawyers say that makes it an important tool to show clients who are convinced that their case is priceless.

"It sobers them up and gives them a sense of reality," said Louisville trial lawyer William McMurry.

Ragland researches every case himself rather than relying on winning lawyers to submit summaries of their triumphs, as some in other states do.

"Everybody in the industry feels Shannon's publication is the best because he does it himself," said Erik Albrektson, a Crestwood lawyer whose Verdict Research Group publishes trial-verdict reports in 10 states and Washington, D.C.

But some lawyers and judges -- especially those who have been hooked by Ragland's barbs -- are less impressed. * * *

Ragland saves his harshest criticism for appellate judges -- "they are elected and fair game" -- and medical experts, the hired guns paid "huge fees to destroy the other side's case," he said.

He wrote that one state Supreme Court opinion was "so confusing a playbook is needed"; that Justices Cooper and William Graves are in "Wal-Mart's back pocket"; and that Justice Martin Johnstone is Cooper's "intellectual inferior" and "minion."

Graves and Johnstone say Ragland is entitled to his opinions, which Johnstone said "can be pretty funny if your ox isn't being gored."

Here is the website of the Kentucky Trial Court Review. There appears to be no online sample copy of either the Kentucky or Indiana Trial Court Review.

As Kentucky attorney Michael Stevens points out here in his Kentucky Law Blog review of the federal Reporter, "there are now fewer and fewer trials in the state," making a broader review of decisions useful. Abbreviated versions of the November and December issues are also available for review.

Courtroom trials have been steadily declining since the 1980s. There were only 5,500 federal civil trials across the U.S. last year, down sharply from 14,300 in 1984. State civil jury trials dropped 34 percent between 1976 and 2003, even as the volume of civil cases disposed of during the period rose 165 percent. In criminal court, meanwhile, federal sentencing guidelines are so stiff that more than 95 percent of all criminal defendants opt for plea deals that offer leniency rather than risk going to trial.

[More] The Kentucky Law Blog has also now posted on the LCJ story, adding this information:

What the Courier's story did miss that the KTCR is not just limited to jury verdicts, but provides a bigger picture and broader perspective with "Verdicts Revisited" (jury trials that went up the appellate chain and then back to be retried again); News Commentaries ("The Case for the Ages Goes National" - the McDonald's Hoax); Appellate Tort Opinions; and "Notable Out-of-State Verdicts" for a view of what is happening elsewhere. The biting commentary and wit may have entertainment value and occasionally distracts from the scholarly aspects of the publication, but there can be little dispute that the verdicts are reviewed not just on the facts, but also on the law with trial tactics, strategies, and behind the scenes input (eg., post trial motions status at time of publication and whether or not judgment had been entered).

Sunday, December 25, 2005

Law - Wall Street Journal features losing party in eminent domain suit - Kelo v. City of New London; earlier NY Times report on project status

This feature story, that I read in yesterday's print version of the Wall Street Journal, is available here online today on the Opinion Journal. The headline: "Home for Christmas - Susette Kelo's story: from humble abode to eminent domain." Some quotes:

I'm here to meet with New London's most famous resident since Nathan Hale, the schoolteacher-spy who was hanged by the British in 1776. Susette Kelo's life isn't in jeopardy, but her home is--and her fight to keep it has taken her all the way to the Supreme Court, making her a national celebrity along the way and igniting a nationwide movement to protect private property rights. If June's ruling in Kelo v. City of New London is carried out, this could be Ms. Kelo's last Christmas in the home she loves.

In Kelo, the Supremes interpreted the "takings" clause of the U.S. Constitution to say that local governments have more or less unlimited authority to take private property. For Ms. Kelo, that means that the state-financed New London Development Corp. may seize the house where she's lived for eight years, tear it down, and put up a private development that would include more expensive condominiums and townhouses that would return higher property-tax revenues for the city.

"For public use--for a bridge or a road or a school or a hospital--that's bad enough," says Ms. Kelo over tea at the kitchen table of her little house at 8 East Street in the Fort Trumbull section of the city. "But you add insult to injury if somebody else can live here. That's exactly what they plan on doing here. Making it so somebody else can live here." But "I live on East Street. I live on East Street. Why can't I live here?"

The Journal feature caused me to recall another Kelo story and I pulled it up - from the Nov. 21st NY Times (available here). The headline: "After Eminent Domain Victory, Disputed Project Goes Nowhere." Some quotes:

They have still not moved out. Not Susette Kelo. Not the Derys. Not Byron Athenian or Bill Von Winkle or the others.

Five months after the United States Supreme Court set off a national debate by ruling that the City of New London could seize their property through eminent domain to make way for new private development, no one has been forced to leave.

No bulldozers have arrived to level the last houses still standing, and none are expected soon.

Even though the holdouts lost their case, and the development that would displace them finally seems free to go forward, construction has not begun, and some elements of the project have been effectively paralyzed since the court ruling prompted a political outcry. * * *

[W]ary of public disapproval and challenges from groups like the Institute for Justice, the law firm that represented the holdouts in court, the state and the city have halted plans to evict the remaining residents. Investors are concerned about building on land that some people consider a symbol of property rights. At the same time, contract disputes and financial uncertainty have delayed construction even in areas that have been cleared.

With so many complications, some people are unsure whether the city's initial vision for the property -- a mix of housing, hotel and office space intended to transform part of its riverfront and bolster a declining tax base -- is even realistic anymore.

''Winning took so long,'' said Mayor Jane L. Glover, ''that the plan may not be as viable in 2005 or 2006 or 2007.'' * * *

Pressure to go forward is considerable, even if momentum is not. The state has already invested $73 million on environmental cleanup and sewer and road improvements. Elegant street lamps, intended to illuminate a gentrified new riverfront, instead shine over empty lots where buildings have been leveled but not replaced. * * *

If any construction begins soon, it will happen away from the area where the holdouts remain, said Marty Jones, president of Corcoran Jennison, which has been under contract on the project since 1999.

''We need to have some positive things happening so that every lender and investor I go to doesn't say, 'I want to be 100 miles away from here,' '' Ms. Jones said. ''Eminent domain in Fort Trumbull has been on the front page of every newspaper in the country, and it has not put New London in the most positive light.''

Despite losing in court, the holdouts have gained political leverage, largely through the public relations effort led by the Institute for Justice, Mr. Joplin said.

Scott G. Bullock, a lawyer for the Institute for Justice who argued for the resistant property owners before the Supreme Court, said, ''We might have lost the battle, but the overall war is really going in our favor.''

DETROIT (AP) -- Monica Conyers, a city councilwoman-elect and the wife of Democratic U.S. Rep. John Conyers, has been involved in a bar fight.

A spokesman for Monica Conyers confirmed Friday that she was involved in an altercation early Tuesday at a party at the Crossroads Lounge in Detroit. But he said Conyers merely defended herself after being attacked by another woman.

The other woman involved, Rebecca Mews, told WDIV-TV in Detroit that Conyers threw the first punch and that she never hit back.

Environment - Hammond Superfund cleanup; Marshall County hogs

"Hammond Superfund cleanup nearly done" is the headline to this story today in the Munster (NW Indiana) Times. Some quotes:

HAMMOND | The last few tons of contaminated soil from a former north side chemical facility left the city for good this week.

As part of Superfund cleanup operations at the former Calumet Container site, the U.S. Environmental Protection Agency began removing the first of some 20,000 cubic yards of dirt laced with toxic and carcinogenic substances in October. * * *

Last week, the EPA approved another $500,000 for remediating the once and future wetland area, and Simon said that with public support, the formerly toxic property can be made into 11 acres of something good.

"Residents not too big on pigs: Homeowners call for IDEM hearing on hog farm" was the headline to this lengthy story earlier this week in the South Bend Tribune. Some quotes:

PLYMOUTH -- A proposed confined hog feeding operation that could locate at the intersection of Gumwood and 14th roads was the concern of more than two dozen people who attended the Marshall County commissioners' meeting Monday.

Jon Rettinger and Dave Williams spoke on behalf of the neighbors in the area, citing several studies that blame increased health, water and air quality concerns on similar operations across the country.

They asked the commissioners for a public hearing to try to stop the proposed operation owned by Matt Laidig of Mishawaka.

There was just one problem. Laidig doesn't even have a building permit from the county yet. So technically, he hasn't applied to operate the proposed 8,000-head swine facility here. * * *

"Our ordinance says (the facility has to be) a quarter-mile (away from the nearest residence)," [Ralph Booker, county planning director] said. "There's no special exemption required for these types of operations."

Marshall County officials have been discussing for more than two years now the upgrade of the 1974-issued county comprehensive plan. None of the existing ordinances specifically address confined feeding operations, he said.

Indiana Department of Environmental Management officials had notified neighbors of the proposed operation because IDEM is responsible for monitoring water. IDEM has declined to hold a public hearing on the matter, but is receiving public comment, the men said. * * *

"He (Laidig) hasn't got a building permit now. ... How do you turn him down? And he wasn't notified of this meeting here today," Booker said.

After considerable discussion, the commissioners voted unanimously to draft an ordinance requiring a livestock operation requiring an IDEM permit to have to seek a special exemption from the county, as well.

The commissioners also voted to send a letter to IDEM requesting that IDEM grant a public hearing on the "concerns over which IDEM has control -- namely, the water," Zentz said.

Laidig said by phone Monday that he is waiting for permits from IDEM before he can obtain his building permit on the 580-some acres he bought in Marshall County.

"To me, I think the county has to decide what it's going to do (with regard to agriculturally zoned land uses)," Laidig said. "I went and saw what the county's requirements are. ... I met all the requirements, and now they are changing in mid-stream. ... I've got a huge investment."

Ind. Courts - Lake County jury pool member sent to jail

"Juror sent to jail: Judge rejects her excuse for leaving jury selection" is the headline to this story by Ruthann Robinson in today's Munster (NW Indiana) Times. Some quotes:

CROWN POINT | Bailiff! Take her away. On Friday, Lake Criminal Court Judge Salvador Vasquez ordered to jail a juror who absconded during jury selection in the case against Wilton Sandifer.

Vasquez said Shalonda Walker, of Gary, was a member of the jury pool called to service for the arson and attempted murder trial Dec. 12. A few hours into the process of picking 12 jurors and two alternates, the court broke for lunch and Vasquez ordered those remaining in the pool to return after the break.

Vasquez said Walker didn't come back. * * *

Court Administrator Martin Goldman sent Walker a letter telling her to come to court Friday to explain why she didn't return. Her explanation that her ride was leaving so she had to go didn't sit well with Vasquez.

"First of all, she had a smirk on her face," Vasquez said. "And she didn't apologize. She said her ride was leaving but that doesn't explain why she didn't tell anyone."

According to Indiana law, a person who doesn't show up for jury duty can be sent to jail for three days and fined $100. "I found her in contempt and ordered her to spend one day in jail," Vasquez said.

The four criminal court judges have been trying to figure out how to deal with people who are called to jury duty and don't come at all, Vasquez said. "We've talked about bringing them all in to ask them why," he said.

Ind. Courts - Temporary judge named to replace Danikolas

GARY | The Indiana Supreme Court has named a temporary replacement for the late Lake Superior Court Judge James Danikolas.

The high court appointed Senior Judge Thomas W. Webber Sr. who will sit in Civil Division Room 4 in the county courthouse at 4th and Broadway from Jan. 3 until the governor names a permanent successor.

Danikolas died Dec. 10 while vacationing in the Florida keys. He presided over family law matters.

Magistrates Maria Luz Corona and Nanette Raduenz are conducting court business until the end of the year. The Supreme Court is giving Webber the authority to retain Danikolas' staff.

Law - Even more on Election law standoff in Kentucky: KY Supreme Court rule

"UnbelieveableUnbelievable defiance" is the headline to an outraged editorial today in the Louisville Courier Journal. The ediorial doesn't begin with "I'm shocked, shocked ..." but does start:

It's incredible that the forces behind Dana Seum Stephenson's grab for a seat in the state Senate may be considering defiance of Kentucky's legal system.

That's the obvious reading of reaction from Gov. Ernie Fletcher, Senate President David Williams and attorney James Milliman to this week's decisive state Supreme Court ruling in the 37th Senate District case.

Gov. Fletcher's spokesman said action to fill the seat through a special election would be premature. Sen. Williams is "reviewing" the decision. Mr. Milliman may take it to the U.S. Supreme Court.

Instead, they should have immediately gathered on the steps of the Capitol as the Governor called an election, as quickly as possible, for someone to represent the 110,000 residents of the 37th. Those citizens have already been denied a voice in one meeting of the General Assembly. Would the Governor and his allies make it two?

The Chicago Tribune today has a story, headlined "Racing pigeons clipped," on Thurday's 7th Circuit decision reported here yesterday by the ILB. Some quotes from the Tribune story by Charles Sheehan:

A federal appeals court ruling this week clipped the hopes of Chicago pigeon racers who said a city law banning pet pigeons was unconstitutional.

On Thursday, a U.S. Circuit Court of Appeals judge upheld an earlier District Court court ruling that found the city was within its rights to ban racing pigeons as pets.

Members of one of the nation's oldest racing clubs were crestfallen Friday.

The case pitted the property rights of the 70 or so members of Chicago's pigeon-racing club, the Greater Chicago Combine and Center, against those of neighbors who complained of scattered feathers, excessive cooing and droppings. * * *

Chicago is the only large American city with a total ban on homing pigeons, officials with the national American Racing Pigeon Union said. * * *

Other large cities have set limits on the number of birds or have required screenings to monitor disease, Clifton said.

Ald. Thomas Allen (38th) sponsored the ban two years ago, prompted by complaints that birders attached large lofts to garages and houses on lots that were only 30 feet by 125 feet.

Friday, December 23, 2005

Law - Procedural ploys in the U.S. Senate struggle this week over Artic drilling

The Washington Post had a story Thursday about the procedural maneuvering in the U.S. Senate in an effort to tack authorization for drilling in the Arctic National Wildlife Refuge onto the defense appropriations bill. Legislative logrolling efforts are always of interest to the ILB, whether on the state or federal level, so here are the details.

The headline: "A Bit of Drama on Senate Floor: Procedural Point Fuels Debate Between Longtime Colleagues."

The situation, as outlined in the Post story:

For 25 years, [Sen. Ted Stevens of Alaska], 82, has tried to secure federal permission to drill for oil in the Arctic National Wildlife Refuge, a remote wilderness area in Alaska's northeast corner. This week, he attached the provision to the fiscal 2006 defense appropriations bill, which also includes hurricane relief funding, and threatened to keep the Senate in session through the holidays until Democrats and moderate Republicans dropped their procedural objections and allowed the bill, with the drilling provision, to pass.

The issue between Stevens and Sen. Robert C. Byrd, 88, of West Virginia:

At the heart of the argument between Byrd and Stevens was whether Stevens had violated Rule 28, which bars unrelated provisions from being inserted in final bills. Over the years, many senators have found Rule 28 to be inconvenient. It disappeared for four years in the late 1990s, and it's flouted routinely to this day. "It is true that noncontroversial extraneous matter is often included in conference reports," Byrd said. "It is true that senators acquiesce on many occasions."

Getting into more technical details of what exactly Senator Stevens proposed to do, I had heard mentioned on C-SPAN that Stevens' amendment would suspend Rule 28within the text of the conference committee report itself, and then, at the end of the report, reinstate it. Close, but not exactly the plan. Here is a statement by Senator Carl Levin on the effort. It begins [my emphasis within]:

A totally extraneous provision allowing for oil and gas drilling in Alaska's Arctic National Wildlife Refuge (ANWR) has been inserted in the Defense Appropriations Conference Report. The provision was in neither the House or Senate bill which went to conference. This provision clearly violates Senate Rule 28 which states:

Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses. If new matter is inserted in the report, or if matter which was agreed to by both Houses is stricken from the bill, a point of order may be made against the report, and if the point of order is sustained, the report is rejected or shall be recommitted to the committee of conference if the House of Representatives has not already acted thereon.

It is clear that the ANWR provision violates Rule 28 and that the Presiding Officer will, on the advice of the Parliamentarian, so rule. The sponsors have indicated that they will appeal such a ruling of the Presiding Officer and seek to overrule it. If they are successful, this would, in effect, eliminate enforcement of Rule 28.

That is why language has been inserted in the Defense Appropriations Conference Report which would, upon the signing of the legislation into law, attempt to reinstate Rule 28's effectiveness. That provision states:

Effective immediately, the presiding officer shall apply all the precedents of the Senate under Rule 28 in effect at the beginning of the 109th Congress.

Playing ping pong with the Senate rules is an outrageous process. Violating a Senate rule and restoring it, all in the same bill, if permitted to occur, means the rules of the Senate are subject to the whim of conference committees. Rules will exist or can be ignored, violated, or reinstated at the whim of the conferees. Conference reports could be used by a Senate majority to circumvent any Senate rule. Each conference committee becomes a Rules Committee– every conference report can accomplish anything the Majority wants regardless of the standing rules of the Senate. Senators should play by the rules, not play with the rules. Do we care if the Senate rules take a massive blow? Why are we contemplating destroying our process this way?

Here is another good description of the procedural maneuvering, from the Tuesday, Dec. 20th Kodiak Daily Mirror. Some quotes:

When the Senate opened its floor session at 9:30 a.m., Sen. Russ Feingold, D-Wis., asked how his colleagues could even consider approving the same bill.

The conference committee that merged the House and Senate versions on Sunday clearly violated a Senate rule by adding the ANWR rider, he said.

“Conferees shall not insert in their report matter not committed to them by either house,” the Senate’s Rule 28 states. The ANWR language was in neither the House nor Senate version of the defense spending bill for the current fiscal year.

The conference committee’s addition of ANWR will thus make the entire bill subject to challenge by any senator. The challenge, called a point of order, will certainly be upheld by the Senate parliamentarian and, ultimately, the Senate’s presiding officer, Feingold said.

A successful point of order would block the bill’s passage. To avoid that result, Stevens and other pro-drilling senators are expected to try to reject the parliamentarian’s ruling, a move that would mock the Senate’s own rules, Feingold said.

Sen. Ted Stevens agreed that the Senate rule prohibits the addition of the ANWR language. However, he said, other rules also allow senators the flexibility to temporarily waive the restriction by rejecting the parliamentarian’s decision.

“It’s not destroying the rule. It’s a disagreement,” Stevens said. “We shouldn’t have people saying we’re breaking the rules.”

Why then, Feingold asked, did Stevens also insert language that would reinstate the plain interpretation of Rule 28 upon the bill’s passage. If Stevens is not destroying the rule, then such language should not be necessary, he said.

Stevens said he is just following past procedure. The language reinstating the rule ensures that the parliamentarian does not view the rejection of the specific point of order as a precedent that undermines the enforceability of the general rule in the future, Stevens said.

He noted that Sen. Harry Reid, the Democratic minority leader, helped overrule the parliamentarian and pass similar language protecting the rule’s continued enforceability on another bill several years ago.

Reid said Stevens was playing “intellectual games” to justify his attempt to trample the rule.

“This has never been done before,” Reid said. His earlier action to which Stevens referred was taken on a “bipartisan basis,” he said.

Stevens himself, though, may need a little bipartisan help to overcome the rule. He has said he’ll need at least a majority of senators, maybe more, to defeat the parliamentarian’s decision.

[More] From a story headlined "A Senator's Bold Ploy on Arctic Drilling" in the 12/21/05 NY Times, the ILB learned [emphasis added]:

A native of Indianapolis and a graduate of Harvard Law School, Mr. Stevens moved to Alaska in the early 1950's, when it was still a territory. He was the United States attorney in Fairbanks, but transferred in 1956 to Washington, where he worked in the Eisenhower administration. He returned to Alaska in 1964, served as a state representative and became a United States senator in 1968.

The City of Chicago enacted an
ordinance that prohibited the keeping of pigeons in most
residential areas of the city. An organization of homing
pigeon keepers, known as the Greater Chicago Combine and
Center, Inc., sued the city claiming that the ordinance
violated the Fourteenth Amendment of the United
States Constitution. The district court granted the city
summary judgment. We affirm. * * *

We are not unsympathetic to the GCCC members affected
by this restriction on how they use their property. At the
same time, we understand the concerns of their neighbors.
Balancing these competing interests, however, is not our
role. Under the governing rational basis standard of review,
federal courts do not review the wisdom or desirability of
fairly debatable legislative choices. See Heller v. Doe, 509 U.S.
312, 319 (1993); Euclid, 272 U.S. at 388. Accordingly, GCCC
is not entitled to relief on its substantive due process or
equal protection claim. The judgment of the district court is
AFFIRMED.

Law - More on Election law standoff in Kentucky: KY Supreme Court rules

Updating yesterday's ILB entry, which included a link to the Kentucky Supreme Court's 100-page opinion, today's Louisville Courier Journal has a lengthy and comprehensive report by Joseph Gerth, headlined "Neither one wins, high court rules: No special election called; federal appeal possible." Some quotes from the portion of the story on the ruling itself:

Was the Jefferson Circuit Court ruling valid that determined Stephenson did not meet the constitutional residency requirement?

If so, should the court order the Senate to seat Woodward?

Writing for the 5-2 majority, Justice Martin Johnstone ruled that the lower court had proper jurisdiction when it decided Stephenson wasn't qualified. When Stephenson didn't appeal, it became the law of the case, the court ruled.

Instead, it ruled that "the effect of the disqualification of a candidate subsequent to the election is that no election has occurred."

But the 22-page majority ruling also carried sharply dissenting opinions from Justices Will T. Scott and John Roach.

Roach said the election controversy didn't belong in the courts because the "Kentucky Constitution grants to the Senate the exclusive power to judge the elections, returns and qualifications of its own members."

And Scott accused the Supreme Court of invading the constitutional power of the legislature, calling the majority opinion "unconstitutional."

That brought a sharp rebuke from Johnstone in his majority opinion.

"While Justice Roach might find it 'mind-boggling' and 'outrageous' that we have decided the issue herein present, it would be even more outrageous for this court to abandon its constitutional duty to 'say what the law is,' " he wrote.

In his concurring opinion, Chief Justice Joseph Lambert made a plea to legislators who disagree with the ruling not to take it out on the courts.

"Responsible officials will reject any notion of defiance or retaliation against the judiciary, for such action would be an attack upon the constitution itself," he wrote.

Note: The Louisville Courier Journal seems to have a copy of the Court's opinion that loads a lot faster than the one on the Kentucky Court site.

Ind. Decisions - Judge allows takeover of state center to proceed

"Judge allows takeover of state center to proceed" is the headline to this story by Sara Eaton in the Fort Wayne Journal Gazette this morning. Some quotes:

The takeover of the Fort Wayne State Developmental Center on Jan. 1 is no longer in jeopardy after an Allen Superior Court judge on Thursday refused to grant a preliminary injunction preventing it.

An employee, Anita Stuller, and her union filed a lawsuit against Gov. Mitch Daniels, Family and Social Services Secretary Mitchel Roob and another state leader this month. The lawsuit sought to at least temporarily stop the takeover of the center and to force the state to go through a bidding process before giving control to a private company. * * *

Judge Nancy Eshcoff Boyer heard arguments from attorneys on both sides this week. She issued a ruling Thursday against Stuller and the union, American Federation of State, County and Municipal Employees Council 62.

According to the ruling, attorneys Mary Jane Lapointe, Gary Price and Daniel Serban argued that state law requires FSSA to complete a bidding process before privatization occurs. Attorneys Steven Jackson and Michael James argued the state is not required to have a bidding process but is entitled to buy public services using any method the state feels is appropriate.

The bidding process in this case was not applicable, according to Boyer’s ruling. Boyer also noted in the ruling that Stuller and the union failed to prove that the lack of a bidding process in giving the contract to Liberty would cause irreparable harm. Additionally, they failed to answer questions asked of them by Boyer during the hearing, according to the ruling.

Serban said late Thursday his clients disagreed with the ruling and will be discussing their options.

The ILB is attempting to obtain a copy of the ruling, and will post it here when received.

This Dec. 17th ILBentry quotes from a Louisville Courier Journal story by Lesley Stedman Weidenbener and Alex Davis of that date:

INDIANAPOLIS — Gov. Mitch Daniels said yesterday that the state failed in its bid to keep the Colgate-Palmolive Co. toothpaste factory in Indiana because it doesn't have right-to-work legislation.

"We did absolutely everything we could do, and I think they'd tell you that," Daniels said of Colgate, which plans to close its 475-employee factory in Clarksville by January 2008. "I talked a couple of times myself to the CEO and to other leadership. We made an offer we believe was competitive in every other respect."

But, he said at a news conference, "they (Colgate) want to be in a right-to-work state."

Gov. Mitch Daniels said Thursday that he will not seek to change Indiana labor laws that require workers in a union workplace to join and pay union dues.

Last week, Daniels said Indiana's lack of "right-to-work" legislation, which would allow workers to opt out of union dues in a union-represented workplace, was a large factor in Colgate-Palmolive Co.'s decision to close a Southeast Indiana toothpaste factory. When asked Thursday, though, Daniels said he wouldn't push for a change because the debate "would be enormously divisive."

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending December 23, 2005. There are 39 Court of Appeals cases listed this week, plus 2 Tax Court cases.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

In his appellate brief, filed on December 27, 2004, Knighten challenged his sentence on the specific ground that the trial court relied upon improper factors in enhancing his sentence. Although he did not explicitly argue that his sentence violated the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004), he cited Blakely in his brief. * * * The Court of Appeals, however, found that Knighten had waived his sentencing argument because his “many citations [were] unpersuasive in the absence of cogent reasoning.”

Knighten petitioned for rehearing, arguing, among other things, that he did not intention-ally waive his sentencing argument and that in light of our decision in Smylie v. State, 823 N.E.2d 679, 689 (Ind. 2005), he had preserved his Blakely claim by contesting his sentence on appeal. The Court of Appeals granted rehearing for the limited purpose of clarifying a sufficiency of the evidence issue and affirmed its original opinion. * * *

As mentioned above, Knighten filed his initial appellate brief challenging his sentence prior to the date on which we decided Smylie. He subsequently raised a specific Blakely claim in his petition for rehearing, filed on July 8, 2005. Therefore, Knighten is entitled to review on the merits of his Blakely claim.

We grant transfer, summarily affirm the decision of the Court of Appeals as to all issues except sentencing, and remand this case to the Court of Appeals for consideration of and ruling on Knighten’s Blakely claim.

Law - Election law standoff in Kentucky: KY Supreme Court rules

The Louisville Courier Journal websiter posted this AP report by Mark Chellgren late this morning that the Kentucky Supreme Court has ruled in the year-long Kentucky legislative seating dispute. Some quotes:

FRANKFORT, Ky. (AP) -- Republican Dana Seum Stephenson cannot serve in the state Senate because she did not meet residency requirements and was properly challenged before the November 2004 election, a divided Kentucky Supreme Court ruled Thursday.

But Democrat Virginia Woodward also cannot serve because she did not receive the most votes, the court added.

The result leaves the 37th District Senate seat in Jefferson County vacant, as it has effectively been for a year. The court did not recommend a solution, but the likely outcome will be a special election to fill the vacancy. An election could be set by Gov. Ernie Fletcher or, if nothing is done before the General Assembly convenes on Jan. 3, the date would be set by Senate President David Williams. * * *

While Senate Republicans, led by Williams, declared that the case was a matter of constitutional separation of powers between the legislature and the courts, Justice Martin Johnstone, who wrote the majority ruling, said it boiled down to a simple matter of an election challenge.

The day before the election, Woodward filed suit in Jefferson County Circuit Court, alleging Stephenson had not been a resident of Kentucky for the six years, as the Constitution requires. In balloting the next day, Stephenson received more votes than Woodward.

But during a later court hearing, it was shown Stephenson had lived in Indiana from 1997 to 2001, voted there, owned a house, had a driver's license and paid in-state tuition to attend school while earning a graduate degree, though she taught school and owned another house in Jefferson County. The judge said she was therefore not a legal candidate and ordered that her votes not be counted.

Johnstone said Kentucky law allows a challenge to someone's legal qualifications for office to be filed up until the election. Woodward met that deadline and the courts retained jurisdiction, the court said.

Rather than appeal the court decision, Stephenson went to the Senate, where her fellow Republicans voted to allow her to serve. Williams and his colleagues argued that only the Senate is allowed to determine its makeup. Williams even declared 20 members of the Senate could vote to admit a 23-year-old, even though the Constitution requires senators to be 30. "And no court in the land would overturn it," Williams said.

Ind. Decisions - One decision today by the Court of Appeals

Appellant, Travis J. Merlington, challenges the trial court’s denial of his Motion for Return of Property. Upon appeal, Merlington claims and the State agrees that the trial court was without authority to order money, which was seized from Merlington at the time of his arrest, be applied toward fines and court costs. We reverse and remand. * * *

We recognize that the trial court’s decision has a common-sense appeal. If the court is in possession of cash owned by the defendant, and the defendant is obliged to pay fines or costs to the court, it would seem eminently reasonable to allow the court to use the cash owned by the defendant to satisfy all or part of the amount owned. As the State concedes, however, the applicable statutes appear to give no such power to the trial court. Applying a relatively relaxed standard of review because the State has conceded error, we feel compelled to reverse the order of the trial court and remand with instructions that the $641 taken from Merlington at the time of his arrest be returned to him.

Ind. Courts - More on: Update on the status of the Indiana voter photo-ID law challenge

This ILBentry from yesterday leads you to all the filings in the pending federal case of Indiana Democratic Party v. Rokita. Today Charles Wilson of the AP has this story, as published by the Louisville Courier Journal. Some quotes:

INDIANAPOLIS (AP) -- Indiana's new voter identification requirement could make casting ballots such a chore that some people could be discouraged from voting, Democratic Party attorneys argue in new court filings.

Requiring voters to present a government-issued photo ID at polling places unfairly affects the poor, minorities, people with disabilities and the elderly who are more likely to lack driver's licenses, lawyers for the Democrats wrote in a brief filed Wednesday* in federal court that asks the Judge Sarah Evans Barker to throw out the law.

State officials maintain the ID law is a reasonable attempt to protect the integrity of elections. It does not place an unconstitutional burden on voters as the state Democratic Party contends, lawyers representing the state wrote in earlier filings.

State Attorney General Steve Carter argued in a brief this month that the law does not set unreasonable requirements. * * *

Indiana is one of six states with a voter ID law currently in force. A judge suspended Georgia's voter ID law last month.

A hearing has not yet been scheduled in the Indiana case.

____
*"A brief filed Wednesday" would be Dec. 21st. Unfortunately the filings on the Moritz site are only current through 12/6/05.

Ind. Law - Chiropractor's punishment improper, judge says

Yesterday the ILB had this entry (which was updated again this morning) about actions of the state medical and dental boards.

Today the Indiana State Board of Chiropractic Examiners is in the news, in an APstory published today in the Louisville Courier Journal with the headline "Chiropractor's punishment improper, judge says." Some quotes:

JASPER, Ind. -- A judge has ruled that a Huntingburg chiropractor was improperly reprimanded by the state last year for treating horses.

Pamela Ann Buss filed suit last January after the State Board of Chiropractic Examiners issued a verbal censure and ordered her to not treat animals.

Dubois Circuit Judge William Weikert ruled earlier this month that Buss was not acting outside the scope of her education, training and experience. * * * "It is this court's opinion, contrary to the board's findings, that Indiana laws do not address the issue whether chiropractors are allowed to treat animals," Weikert ruled.

He ruled that the board's reprimand and censure should be retracted and expunged from Buss' license and record.

Buss, a licensed chiropractor who also is certified by the American Veterinary Chiropractic Association, started practicing in Dubois County more than five years ago. She began treating animals in 2001.

Wednesday, December 21, 2005

Ind. Courts - Update on the status of the Indiana voter photo-ID law challenge

Back on April 28 the Fort Wayne Journal Gazette has a story headlined "ICLU plans suit to derail voter-ID law." The story is quoted in this ILBentry.

In October a Georgia federal judge put that state's photo ID requirement on hold, as related in this ILB entry from Oct. 19th. A few days later Jim Stinson of the Gary Post-Tribune took a look at the possible impact on Indiana of the Georgia federal district court decision, according to this Oct. 23rd ILBentry. A quote from Stinson's story:

Ken Falk, legal director for the Indiana Civil Liberties Union, is hard at work on a brief challenging Heinold’s law [State Sen. Vic Heinold, R-Kouts, is the bill’s author]. The ICLU will lead the charge against the bill in the courtroom of U.S. District Judge Sarah Barker, a Southern Indiana district court. His brief is due Oct. 31, and a year-end decision is expected.

Well, year-end is near. The ILB admittedly had lost track of this case, until directed today by a reader to a site that has ALL the pleadings.

The defendant, James Thomas Myers, challenges the admission of evidence resulting from a warrantless search of his car based on a police canine sniff sweep of the car following a routine traffic stop. He was convicted of possession of methamphetamine in excess of three grams with intent to deliver, a Class A felony. The Court of Appeals affirmed. Myers v. State, 812 N.E.2d 146 (Ind. Ct. App. 2004). We granted transfer and now affirm the trial court. Separately claiming violation of both the federal and state constitutional prohibitions against unreasonable search and seizure, the defendant's appeal contends (a) that the warrantless canine sniff test of his vehicle was impermissible because it was not done until after the stop had been completed; (b) that, even if the canine sweep occurred before the traffic stop concluded, there was no probable cause to authorize either the exterior vehicle canine sniff or the resulting interior search; and (c) that because his vehicle was not mobile, the warrantless search of the in-terior of the defendant's vehicle was not justified by the automobile exception to the warrant requirement.* * *

I. Fourth Amendment Claim. * * * In the present case, the defendant's car was readily mobile and thus eligible for the automobile exception regardless of the fact that it may have been temporarily confined by physical circumstances including the position of Officer Turner's police vehicle blocking it from the rear. Because the positive narcotics dog response provided probable cause to search the readily mobile vehicle, the warrantless search of it was justified under the automobile exception.

II. Article 1, Section 11 of the Indiana Constitution. * * * Considering and balancing the non-exclusive factors identified in Litchfield, we conclude that the interior search of the defendant's car was reasonable under the circumstances. * * *

Conclusion. We conclude that the warrantless search of the defendant's vehicle did not violate the search and seizure provisions of either the federal Fourth Amendment or Article 1, Section 11 of the Indiana Constitution. The judgment of the trial court is affirmed.

Shepard, C.J., and Sullivan and Boehm, JJ., concur
Rucker, J., concurs in Part I and concurs in result in Part II

In this interlocutory appeal, the defendant, high school student John P. Meyers, challenges the trial court’s order denying his motion to suppress evidence resulting from a search of his vehicle in the school parking lot. The Court of Appeals affirmed. Myers v. State, 806 N.E.2d 350 (Ind. Ct. App. 2004). We granted transfer and likewise affirm the denial of the defendant’s motion to suppress. * * *

We conclude, however, that the search was reasonable from its inception because it was conducted after an alert by a police narcotics dog. Furthermore, the search as conducted was reasonably related in scope because the school officials limited their searches to those areas upon which the dogs alerted. The vehicle search by school officials was thus reasonable.

Because reasonable suspicion is not required for a canine narcotics sniff of the exterior of an automobile that does not involve an unreasonable detention of a person, and because the search was predominantly initiated and conducted by the school officials of Austin High School and was reasonable, we affirm the trial court's denial of the defendant's motion to suppress the firearm seized from the defendant's vehicle as a result of the search.

Sullivan, Justice, dissenting.
I respectfully dissent. While I am willing to accept for purposes of analysis in this case the tripartite standard for determining the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, I cannot agree that the search in this case was, as the Court says, conducted by a “school resource officer on his or her own initiative to further educationally related goals.” Each of the searches “conducted by school officials with only the assistance of police” cited by the Court involved fact patterns where the assisting police officers were employees of the local police department who were pro-iding security at the school. The facts here are dramatically different; there is nothing in the record to suggest that any of the officers involved in this case were only school police or liaison officers as they were in all of the cases cited by the Court. * * *

Rucker, Justice, dissenting.
The United States Supreme Court has determined that under limited circumstances a sniff test by a trained narcotics dog is not a search within the meaning of Fourth Amendment. * * *

Taken together these cases seem to stand for the proposition that: (i) no warrant is required in the first instance for the use of a trained narcotics dog, and (ii) once the dog alerts to the presence of narcotics, probable cause has been established either to obtain a warrant or search pursuant to an exception. The question presented in this case however is one step removed, namely: whether something less than probable cause, i.e., reasonable articulable suspicion of criminal activity, is required before a narcotics dog may be used to conduct a sniff test.

Ind. Decisions - Indiana medical and dental board actions [Updated]

COLUMBUS, Ind. -- A doctor accused of growing marijuana in his home will be allowed to resume his practice under probation, the state Medical Licensing Board decided.

Dr. Arnaldo Trabucco and his wife, Pamela, still face a Jan. 17 trial in Bartholomew Superior Court on charges of possession of marijuana.

The state suspended the urologist's license indefinitely following the couple's arrest this spring. Police said they found marijuana growing equipment, 33 plants and bagged marijuana in the couple's home on April 28.

Evidence suggested that Trabucco, 49, was using the marijuana to treat his 50-year-old wife, who suffered from several documented illnesses including Ramsay Hunt Syndrome, a painful viral infection of the facial nerve, The Republic reported Sunday.

ANGOLA) - An Angola dentist was given a legal setback this morning in Steuben County Circuit Court. Lawyers for Doctor Penny Dunlap had filed petitions earlier this month in hopes of getting a stay of the 90 day license suspension handed down against her early in November by the Indiana Board of Dentistry after State Attorney General Steve Carter claimed she misdiagnosed the number of cavities in three patients. Attorneys Beth Beech and Alan Stout also sought a judicial review of all of the procedures before the State Board issued its ruling claiming inadequate notice was given about the meeting at which Dunlap had her license suspended. But the state filed a motion Monday seeking a dismissal of the petitions filed by Dunlap's attorneys claiming Judge Allen Wheat did not have jurisdiction over the matter and that the Board of Dentistry was not done with Dunlap's case. Judge Wheat granted the state's motion during a brief hearing this morning. Dunlap is now scheduled to appear before the Indiana Dentistry Board on January 6th to determine the status of her suspension.

A dentist suspended by the state because of allegations that she diagnosed patients with cavities that did not exist has asked a court to review the decision. * * *

Wednesday afternoon, Dunlap's lawyers, Allen Stout and Beth Beech, filed a petition for judicial review of the suspension. Steuben Circuit Judge Allen N. Wheat has been asked to stay the suspension proceedings and rule on whether the board acted within the law.

According to the petition, Dunlap was not given proper notice of the suspension hearing, and therefore any action taken by the board after the hearing notice is "void and illegal."

[Updated 12/22/05] Karen Hull of the Fort Wayne Journal Gazette has a story today - some quotes:

ANGOLA – An attempt by local lawyers to lift the 90-day license suspension of an Angola dentist was crushed Wednesday when Steuben Circuit Judge Allen Wheat ruled he didn’t have jurisdiction over the case.

Daniel J. Cavallini, a deputy attorney general with the state Attorney General’s Office, filed a motion in response to dismiss the case, saying that Wheat had no jurisdiction in the matter. * * *

Though he would have liked Dunlap to be able to immediately return to her practice, Stout said Wednesday he wasn’t frustrated with the decision.

“Judge Wheat’s ruling is not unfair either to the state government or to us,” he said. “The good thing about the ruling is the judge now recognizes the tremendous predicament … Dr. Dunlap is in with the state suspending her license for 90 days and then looking at suspending it for another 90 days.”

[Judge] Wheat questioned Cavallini about how many times the suspension hearings could occur. Cavallini replied that the state doesn’t want the issue to drag on endlessly. Dunlap and her attorneys will be able to argue their case, submit evidence and bring witnesses to the hearing Jan. 6, he said.

The founders and owners of an ongoing business took in new investors and formed a successor corporation. They agreed to stay on for three years and not to compete for two years after that. We hold that such promises not to compete should be enforced on a more liberal basis than the skeptical one courts use regarding contracts between employer and employee. * * *

Covenants not to compete are not favored in the law. * * *

For a variety of reasons, covenants not to compete ancillary to the sale of a business stand in better stead. * * *

As a result, the policy considerations “dictate that noncompetition covenants arising out of the sale of a business be enforced more liberally than such covenants arising out of an employer-employee relationship.” * * *

A. Sale of a Business Covenant. This more favorable review of sale of a business covenants leads us to conclude that the trial court was right to see the present one as reasonable, eliminating any need to use the blue pencil doctrine. * * *

The covenant contains both a reasonable time provision -- five years -- and reasonably defines the prohibited activity -- contracting and soliciting. While the reach of the covenant is not entirely clear, it does restrict Dicen from contracting with and soliciting “persons or entities identified from time to time” while competing against New Sesco. Finally, the covenant limits itself to the area of business involved by stating that Dicen shall not perform the prohibited activity while competing with New Sesco. * * *

B. Employment Covenant. Since this employment covenant not to compete was executed in the same business transaction as the sale of a business covenant, and therefore the bargaining power was likely equal here as well, we will also engage in a more liberal review of its reasonableness. Despite this standard of review, we find the employment covenant unreasonably broad in scope. Restricting Dicen from working in the land remediation business anywhere in the United States for two years after he left New Sesco exceeds the bounds of reasonableness, especially when Dicen’s contacts were in a limited number of states.

We decline to utilize a blue pencil to strike the geographical limitation, because the result would be no geographical limitation at all. The employment agreement covenants are unenforceable.

Conclusion. We summarily affirm the Court of Appeals’ analysis of the trade secrets, unclean hands, and injunction bond issues. Ind. Appellate Rule 58(A). We remand for consideration of such damages claims as may be proven consistent with upholding the sale agreement.

Ind. Gov't. - Half a year later and Porter has yet to comply with Open Door Law request

"Half a year later and Porter has yet to comply with Open Door Law request" was the headline to a story yesterday by Kevin Nevers (or use this link if you are not reading this on 12/21/05) in the Chesterton Tribune. Some quotes:

What exactly does “reasonable” mean?

Say, for instance, that the Chesterton Utility made a request on June 10 to inspect all of the Town of Porter’s “documents related to sanitary sewer separation projects” from 1984 to the present, and that as of Monday Porter had not provided a single document, is Porter taking a “reasonable” amount of time under the Indiana Open Door Law to comply with that request?

Or is it being unreasonably dilatory?

The Utility Service Board wants to know, and at their meeting on Monday members asked Associate Town Attorney Chuck Parkinson whether they have any options.
Parkinson could offer little guidance other than to file another formal request with Porter Clerk-Treasurer Carol Pomeroy. “There’s been a response to our request,” he said. “And the problem under statute is that so long as (the documents are) provided in a reasonable amount of time—we need to stay on this and make the request again. ‘Reasonable’ depends on the request. It may be this is taking a little longer than can be considered ‘reasonable.’”

The response to which Parkinson was referring was a letter from Porter Associate Town Attorney Patrick Lyp in reply to Utility Steve Yagelski’s initial request. “The bulk of the documents you are requesting are maintained by our engineers,” Lyp wrote in that letter. “It is my understanding that the town had these documents in its possession at one time; however our preliminary search to find these documents was unsuccessful.” Lyp then provided a schedule of copying costs for documents which may or may not have disappeared.

There is no mention in the story of whether the Town had filed a complaint with the Indiana Public Access Counselor. But a check of the PAC files shows that Chesterton has recently (11/23/05) received an opinion from the PAC on a related matter:

Dear Mr. Lukmann:
This is in response to your formal complaint on behalf of the Town of Chesterton, alleging that the Town of Porter (“Porter”) violated the Open Door Law by voting in an executive session to bring a lawsuit against the Town of Chesterton. I find that if the Town of Porter took final action in an executive session, it violated the Open Door Law.

As to the enforcability of PAC opinions and a citizen's options, recall this ILB entry from Oct. 17th, quoting the Munster (NW Indiana) Times call for "teeth" in the PAC law.

Tuesday, December 20, 2005

Ind. Decisions - Court of Appeals issues three today

At issue in this appeal is the interpretation of Ellen C. Isanogel’s 1951 will, which left approximately 140 acres to Isanogel Center’s predecessor to use “as a home or recreation grounds for the enjoyment of crippled or physically handicapped children and adults.” Because there is no condition subsequent in Ellen Isanogel’s will, Boys Town has no interest in the real estate, and the trial court erred by granting partial summary judgment in its favor. We therefore direct the trial court to enter summary judgment on this issue in favor of Isanogel Center. Also, because there is no evidence that Boys Town acted in malice when filing its notice of reversionary interest in the real estate, we direct the trial court to enter summary judgment in favor of Boys Town on Isanogel Center’s slander of title claim.

Appellant Glen Strohmier (“Husband”) appeals the Franklin Circuit Court’s order revising the property division portion of a 1991 divorce decree between Husband and his ex-wife, Vivian Strohmier (“Wife”), the Appellee in this case. We are presented with one issue for review, which we restate as: whether, 14 years later, the trial court had authority to reform the parties’ initial divorce decree due to Husband’s interim discharge in bankruptcy. Concluding that the trial court did not have authority to grant Wife’s requested relief, we reverse and remand.

Ind. Decisions - Two from Supreme Court, on credit agreements, and on termination of parental rights

The question presented is whether a statute that prohibits a debtor from “bring[ing] an action upon a credit agreement” unless it is in writing applies also to a debtor’s assertion of an affirmative defense. We conclude it does not.

In August 1995, Bank One loaned Sees Equipment $500,000. John Thomas Sees (“Sees”) and his brother Robert Sees, as officers of Sees Equipment, executed a note in favor of Bank One in that amount. Sees also executed an “Unlimited Continuing Guaranty” that assured full payment of all debts Sees Equipment owed. Sees Equipment was later sold, and the buyers assumed the Bank One debt. The buyers then defaulted. Bank One filed a complaint against all parties involved, including Sees as guarantor.

Thereafter, designating the guaranty agreement, Bank One filed a motion for summary judgment claiming no genuine issues of material fact existed as to Sees’ liability as guarantor. In opposition, Sees argued that he was fraudulently induced to sign the agreement. According to Sees, he signed the document only after receiving an oral assurance from a loan officer that the purpose of the guaranty was to provide leverage to guarantee Sees’ cooperation in the event of corporate default. * * * Having previously granted transfer we now affirm in part and reverse in part the judgment of the trial court.

Dickson and Sullivan, JJ., concur.
Shepard, C.J., concurs and dissents with separate opinion
Boehm, J., concurs in part and dissents in part with separate opinion, in which Shepard, C.J., concurs.

Justice Rucker's opinion is 11 pages of the total 16 pages. In a footnote, the opinion states:

While this case was pending on transfer the parties settled their differences and filed a joint motion to withdraw this appeal and to dismiss it as moot. Although as between the parties this matter is now settled, we nonetheless believe the legal issues raised in this case are significant and warrant this Court’s attention. We therefore deny the parties’ motion. * * *

The trial court terminated Robert Bester’s parental rights on the ground that the parent-child relationship posed a threat to the well being of the child. The Court of Appeals affirmed. Concluding that the evidence does not clearly and convincingly demonstrate that Bester’s parental rights should be terminated, we reverse the judgment of the trial court. * * *

Several of the trial court’s findings were either misleading or unsupported by the evidence. And those findings supported by the evidence did not support the trial court’s judgment. As a result, the trial court’s conclusion that there is reasonable probability that the continuation of the parent-child relationship poses a threat to Child’s well being has not been demonstrated by clear and convincing evidence and thus is clearly erroneous. We therefore reverse the judgment of the trial court.

Environment - Harrison County farmland program; Porter County birds

The Harrison County commissioners postponed action last night on an ordinance that would launch a land-conservation program to protect woodlands and farms.

Opposition from some of the county's large farm owners surfaced in recent months, and one commissioner, James Goldman, also raised questions about how the county would pay for the program. * * *

Under the proposed ordinance, Harrison leaders would appoint an 11-member land conservation board that would work with established land trust groups to pay farmers for development rights to the property. The landowner, in turn, would agree to limit the land to agricultural uses.

It's envisioned that the local group would apply for federal land and ranch conservation grants to help pay for the program.

"Porter County is for the birds" is the headline to this story by Diane Krieger Spivak in the Gary Post-Tribune. Some quotes:

Northwest Indiana birders have known for years that the unique topography and climate of the Duneland area provides a perfect habitat for a variety of birds. * * *

The National Audubon Society is paying attention though, and this fall formally recognized three specific points in Porter County in its first Important Bird Areas program in the state of Indiana.

Beverly Shores, Cowles Bog in the Indiana Dunes National Lakeshore, and Indiana Dunes State Park are the first and so far only designated IBAs in the region, according to James Cole, Indiana Important Bird Areas coordinator. In Indiana, just 13 sites have been identified out of a potential list of more than 100. Porter County is the only Indiana County with more than one site.

The IBA program is a global conservation initiative, Cole said. It identifies critical habitats for bird populations. “We just started our inventory in the beginning of the year,” Cole said. “We’re still not finished with Porter County. We’re going with the highest priority sites.”

“Beverly Shores is a very important area for nesting waterbirds considered endangered or threatened,” Cole said. Along the southern shore of Lake Michigan, the private and National Lakeshore areas include lake, beach, wooded dunes and interndunal marsh habitats, Cole said. Migratory, nesting and waterbirds include passerines, bitterns, rails, ducks, loons and gulls.

Cowles Bog, part of the Dunes National Lakeshore, is what’s left of what locals call the “Great Marsh” that at one time ran from Gary to Michigan City. A National Natural Landmark, the bog attracts many types of birds, Cole said. “This is a very significant place not only for birds but for total ecology,” he said. * * *

The program is a global conservation initiative, Cole said. It identifies critical habitats for bird populations. “It’s not a regulatory program,” Cole said. “There is no legislation in place to protect the sites.”

Much of the data used to identify the areas in Porter County was compiled by Ken Brock, a retired Indiana University geology professor, and author of “Bird of the Indiana Dunes.” Brock, who has collected information on birds for more than 30 years, said the wooded dunes, oak savannas, and interdunal marshes of the Duneland area all contribute to a unique bird habitat.

They are important “not because of rare birds, but they offer breeding habitats that attract certain kinds of birds who wouldn’t be there otherwise.”

The Dunes State Park’s forest is the only area north of the Kankakee River where the cerulean warbler and Louisiana waterthrush breed, and the prairie warbler nests in the park’s blowouts and dunes.

Brock finds the IBA program “phenomenal. It focuses on what’s good and makes sure we preserve it,” he said. “All three of the areas in Porter County are great places,” he said. “I think they’re treasures.”

Ind. Courts - Union County Courthouse renovation vs. Fayette County's

The headline to this Richmond Palladium-Itemstory by correspondent Pam Tharp reads: "Another courtroom treasure revealed: Original tin ceiling at Union Co. building uncovered but will be hidden after renovation." Some quotes:

LIBERTY, Ind. -- The original ceiling of the Union County Courtroom hasn't been seen in about 30 years, and soon it will be covered again.

The temporary removal of the courtroom's dropped ceiling during the renovation has revealed the room's original pressed tin ceiling. Two stories high, the ceiling features a center medallion and cross members that divide the metal ceiling into sections. A smaller medallion marks each corner.

Much of Union County's courtroom -- the judge's bench, the spittoons, the wrought-iron theater seats and the railing that separates the public from the well of the court -- is just as it was when the building was built in 1890. * * *

An arch in the wall above the judge's bench will be covered again when the dropped ceiling is replaced, as will the upper half-moon glass panels over the double-hung windows.

Like the Fayette County Circuit Courtroom, Union County Circuit Court also has a covered ceiling and molding. Unlike Fayette County, no one is mounting a campaign here to restore Union County's courtroom.

The reference to Fayette County may be related to the AP story cited in this Dec. 3rdILB entry titled "Court renovation reveals hidden artwork".

Law - The Office of Management and Budget wants to give agencies guidance on their guidance.

The Washington Post column, The Regulators, by Cindy Skrzycki, has an interesting story today headlined "The Office of Management and Budget wants to give agencies guidance on their guidance." Some quotes:

The OMB's Office of Information and Regulatory Affairs is trying to address an accepted practice in which many agencies issue policy statements and other documents as "guidance" to interpret their rules and set out expectations for compliance.

Unlike traditional rulemaking, guidance is not subject to notice and comment procedures or judicial review. It's faster to issue and, normally, not reviewed by the OIRA. Though not legally binding, guidance is sometimes considered practically binding by regulated industries, a sort of "backdoor" rulemaking. * * *

"Guidance is a good thing," said Jeffrey Lubbers , fellow in law and government at the American University Washington College of Law . "The problem comes in when agencies treat them as binding on the public without notice and comment." He added that there is a natural tension between agencies using the practice for good reasons and them abusing it by avoiding the real rulemaking process.

To clear up the ambiguity, the OMB proposes that agencies get approval from their top officials before issuing "significant" guidance, which it defines as dealing with issues that would cost the economy more than $100 million annually or are "highly controversial" or technically "novel or complex." Guidance documents should be available to the public on agency Web sites.

Agency comments on the proposed "good guidance practices" or GGP, are due Dec. 23.

"The new guidance will enhance the opportunity for the public to participate in the most important regulatory guidance notices issued by federal agencies," John D. Graham , OIRA administrator, said in an e-mail.

Here, from the OMBA site, is the "Proposed Bulletin for Good Guidance Practices." Note that:

The Office of Management and Budget (OMB) is extending the comment period regarding its draft Bulletin for Good Guidance Practices from December 23, 2005, to January 9, 2006. This Bulletin is intended to increase the quality and transparency of agency guidance practices and the guidance documents produced through them.

The Indianapolis City-County Council last evening approved Proposal 622, the Human Rights Ordinance. According to the side-bar to this story in the Indianapolis Star today:

Anti-discrimination measure: Sexual orientation and gender identity will be added to the list of classes, such as race, religion and gender, specifically protected from discrimination in the workplace and housing market. City and state government hiring policies already include such protections. The ordinance extends them to any business with six or more employees, excluding religious institutions and certain nonprofits.

What's next: The changes adding sexual orientation and gender identity to the city's human rights ordinance will go into effect as soon as Mayor Bart Peterson signs off on them, which he plans to do this week.

Monday, December 19, 2005

Ind. Courts - Criminal amnesty period created in Bartholomew County

Local officials say suspected criminals who have failed to appear in court now have an amnesty period where they can come to the Bartholomew County Courthouse without facing additional charges. Superior Court Judge 2 Roderick McGillivray says individuals who have warrants for misdemeanor criminal offenses can come to court anytime between 8:30 in the morning and 4:30 p.m. until January 31st as part of the program. He claims the amnesty period was created to combat jail overcrowding. You can call the Bartholomew County Courthouse at 379-1610 for more information.

Other circuits are divided on the question whether, after
Leocal, felony drunk driving is a “violent felony” under
§924(e)(2)(B)(ii). One holds that it is. United States v.
Moore, 420 F.3d 1218, 1224 (10th Cir. 2005). A panel of
the eighth circuit has gone the other way. See United States
v. Walker, 393 F.3d 819, 828 (8th Cir. 2005). But disagreement
within that court has led to rehearing in United States
v. McCall, 397 F.3d 1028 (8th Cir.), rehearing en banc
granted, 2005 U.S. App. LEXIS 7043 (argued Sept. 12, 2005),
where a divided panel followed Walker but doubted its
correctness. If we were to switch sides, it would more likely
aggravate than eliminate a conflict. Rutherford shall
remain this circuit’s position.

Ind. Decision - Court of Appeals posts five, including one on whether a town may alter the terms of a statute by contract

In Ronald Taylor v. The Town of New Chicago the Town Council and the Board of Metropolitan Police Commissioners approved an employment contract for Taylor as chief of police that prohibited his removal without “good cause.” Among the terms of the contract:

It is understood by all of the parties to this Contract that there are various state statutes that govern tenure and termination of the police chief. The Council and Commission understand that this Contract gives Taylor rights that go beyond the provisions in applicable state statutes in regards to the removal of the Chief of Police. Any action to terminate this Contract may only be initiated by a “super majority” of both the Commission and the Council. The term “super majority” shall mean a three-fourth majority of all the members of each respective board. Furthermore, if such action becomes necessary, the matter shall be submitted to arbitration for preliminary and final determination. * * *

If the Council or the Commission is successful in terminating this Contract, the Town shall pay Taylor an amount equal to the Chief’s salary for the remainder of the Contract. * * *

The Council and Commission hereby declare it onerous upon themselves to terminate this Contract in absence of Good Cause. The Council and Commission agree that to do otherwise would impair the operation of the Police Department free from undue influence or interference subject to the orders and Rules/Regulations of the New Chicago Police Department and the Commission.

When a new Council was voted in, one of its first actions was to vote to terminate Taylor. Sheriff Taylor alleged that the Town had:

breached his employment contract by terminating him without good cause and by not complying with the termination procedure in the contract. Pursuant to the liquidated damages provision of the contract, Taylor demanded payment of $60,507.45, which represented the wages he was due under the contract.

New Chicago refused to pay and sought a declaratory judgment that Taylor’s employment contract with New Chicago was void, invalid and unenforceable. After a bench trial, the court found for New Chicago, ruling the employment contract impermissibly impaired the discretion of the successor town council to remove the police chief.

In a 9-page opinion, Judge May writes:

Whether a town council and a chief of police may enter into a valid and enforceable employment contract that permits termination only for good cause is a question of first impression. To resolve the issue, we first examine the town’s powers to act, including any legislative restrictions of those powers. We then consider whether Taylor’s employment contract impermissibly impinges on the powers thus granted. * * *

By purporting to grant Taylor specific rights regarding termination of his employment as police chief, the contract necessarily limited New Chicago’s power to act. * * * The question is whether the Council could so limit its own power. We hold New Chicago could not do so, Taylor’s contract is void, and the demotion and termination of police chiefs is controlled by Ind. Code §36-8-3-4(m). * * *

The Legislature has determined towns ought to retain the authority to remove a police chief without notice, hearing or good cause shown from the rank of chief. The town may not “bargain away” this authority and “by contract commi[t] it[self] to act in agreed manner.” As we noted in Pippenger, the law requires the town “retain its freedom of judgment up to the very moment it was required to act so that its decision when finally made would be influenced only by regard for public welfare” and not by contractual agreements and liability concerns. * * *

Accordingly, we hold New Chicago may not enter into a contract for the chief of police that would permit termination only for good cause. Such a provision would conflict with Ind. Code § 36-8-3-4(m), the Legislature’s explicit reservation of authority regarding the demotion and termination of police chiefs. Taylor’s contract with New Chicago is, therefore, void.

Kenneth Madley, Jr. ) appeals the judgment for Patricia Highfill, his former mother-in-law, regarding a disclaimer of proceeds of a life insurance policy on Rebecca Highfill, his former wife. He raises three issues, which we consolidate and restate as: 1. Whether the disclaimer of Madley’s property interest was valid under the Uniform Disclaimer of Property Interests Act (“UDPIA”); and 2. Whether Madley was fraudulently induced to sign the alleged disclaimer. We affirm.

Simply asserting that he was in another county’s jail during his trial was not an adequate explanation for Brown’s absence when, as here, he was present at the time trial was set and when he chose not to communicate his predicament to his counsel or the trial court during the forty-five days that led up to his trial. We cannot say that the trial court’s finding that Brown waived his right to be present was error or an abuse of discretion. Affirmed.

Ind. Decisions - Two prisoner appeals posted late Friday

The 7th Circuit posted two prisoner appeals late Friday. One was from an Indiana court. In Pavlovsky v. Van Natta (ND Ind., Judge Simon), a 4-page opinion, Judge Posner concludes:

We conclude that Pavlovsky’s appeal is not, as the
government argues, from a second or subsequent petition,
and so all he requires is a certificate of appealability. 28
U.S.C. § 2253(c). He is not entitled to one, because his
petition was untimely and therefore properly denied—with
prejudice. But we take this opportunity to remind district
judges that they should be careful not to label a dismissal of
a habeas corpus petition on the merits as being without
prejudice, thereby depriving the dismissal of the finality
that it ought to have.

Environment - Grand Calumet cleanup; CAFOs in rural counties

State and federal environmental officials say 2006 will be a pivotal year for the waterway, considered to be the most polluted in the Great Lakes ecosystem.

The necessary groundwork has been laid to begin meaningful discussions about remediation alternatives for the river, said James Smith, scientist with the Indiana Department of Environmental Management's land quality office. * * *

A century of industrial abuse has left the river bottom a cesspool of the most poisonous compounds ever created -- polychlorinated biphenyls, pesticides, phenols, heavy metals and other cancer-causing or toxic chemicals.

"The current sources of concern are primarily in the sediments," said Michael Mikulka, EPA researcher.

Not to be unduly cynical, but I recall the same discussions of Grand Cal remediation alternatives and sediments when I was at IDEM in 1986.

CAFOs. Richmond attorney E. Thomas Kemp of Kemplog has an entry today that includes this observation, with which I agree:

Also out of Jackson county, a piece about the concerns facing the county over the legal fees involved in defending the county in lawsuits over zoning decisions, specifically, decision about the Lykins CAFO request: Link I think this points to a real concern for rural Indiana's future: CAFO supporters choose locations where they feel regulation is weak, and money is tight. The hope being that the county will tire of the fight. They are in this sense, environmental carpetbaggers. Other states with poor rural areas are experiencing the same prospect.

"Joining efficiency study would be judicious move for judges" opines the Munster (NW Indiana) Times in an editorial today.

On Dec. 7th, the ILB quoted from a Times story headlined "Judges decline to join Good Government Initiative: Chief judge says it's best for courts to do jobs, avoid scrutiny."

Some quotes from today's editorial:

Lake Superior Court Judge Jesse Villalpando is the only judge to agree to participate in this round of the study, which will closely examine the operations of Lake County government, along with the Lake County Public Library and U.S. Rep. Pete Visclosky's office.

All other county officials have agreed to participate in the study. They deserve the taxpayers' heartfelt thanks for that decision. * * *

Chief Superior Court Judge John R. Pera, speaking on behalf of fellow judges, said this month, "While all of us are concerned about good, efficient government, We are a separate branch that ought to pay attention to getting our own house in order."

Villalpando knows better than to accept the status quo as good enough. He sees the value of an independent efficiency study.

Even though the official deadline is past, there's still time for the other judges to participate if they speak up quickly.

Environment - The impact of mountaintop mining in Kentucky

The ILB has had numerous entries on the issue of moutaintop mining in the past. Today the Louisville Courier Journal has a story showing the impact of such mining, an AP story by Roger Alford, complete with photos. Some quotes:

HAZARD, Ky. -- For Lyle Snider, the view from Ky. 80 is breathtaking, but not in a good way.

Parked on the side of the four-lane highway, the New Hampshire native watched a mountain disappear bit by bit at the hands of miners using explosives and giant earth-moving machines. "It really does look like a moonscape," Snider said, gazing across a barren expanse of dirt and rock.

Mountaintop-removal coal mining, which had largely been relegated to the Appalachian backcountry, has been edging closer to major highways because of a mining boom sparked by higher coal prices. And that has created a sort of reverse eco-tourism among people seeking their first up-close look at the much-debated practice. It also has provided an opportunity for environmentalists to try to sway more people into opposing such mines.

"Disaster tourism" is the term used by the Rev. John Rausch, director of the Catholic Committee of Appalachia, who says visitors are adding mountaintop-removal sites to their travel itineraries, especially in places where they can watch and take photos from the security of their cars.

Ind. Law - Indianapolis City-County Council is scheduled to vote on Proposal 622, the Human Rights Ordinance, this evening

The Indianapolis City-County Council is scheduled to vote on Proposal 622, the Human Rights Ordinance, this evening. The Indianapolis Star has an editorial today stating its position: "Council should approve proposal to protect gays and lesbians against discrimination on the job and in housing. * * * Council members failed to do the right thing in April. They shouldn't miss this second chance now."

Indianapolis attorney Gary R. Welsh has had consistently excellent coverage of this proposal in his blog, Advance Indiana. I point particularly to this entry from Sunday.

Law - Bloomington hospital seeks protections against new rival facility; more

Bloomington -- Bloomington Hospital is forming a policy that could keep leadership positions from doctors who invest in a new for-profit hospital planned for the city.

The hospital may also revoke doctors' privileges if they invest in rival Monroe Hospital, a $35.5 million facility slated to be completed in the fall of 2006.

Bloomington Hospital's medical leaders are formulating a policy that would require physicians being considered for leadership positions at the hospital to disclose any conflicts of interest -- including investing in another hospital.

Here are quotes from a similar story from Saturday, but this one comes from the Knoxville (TN) News-Sentinel:

Covenant Health, the largest hospital operator in the Knoxville area, has amended its bylaws to prohibit physicians on staff from having a financial interest in a competing hospital. The move comes amid physician interest in a partnership with financially troubled Baptist Health System. * * *

According to the letter, Covenant made the changes because of concerns about "serious conflicts of interest" that would be created if physicians on a medical staff of a hospital acquire an ownership interest in a competing facility in Knox, Anderson, Sevier, Loudon and Blount counties.

Hosptials themselves, including the Cleveland Clinic, are the subject of recent conflict of interest inquiries. This story from the Dec. 15th Cleveland Plain Dealer is headlined "Clinic chief seeks probe on conflicts of interest." Some quotes:

In the wake of national media reports critical of the Cleveland Clinic's ties to medical product companies, Clinic chief Dr. Toby Cosgrove asked the board of trustees Wednesday to launch an independent review of potential conflicts of interest across the $3.8 billion health system.

In a letter to professional staff, Cosgrove said recent coverage raised questions about organizational conflicts and his own practices. The review is necessary to "determine whether our policies and practices are sufficient and appropriate," he wrote.

On Monday, the Wall Street Journal published an article detailing Cosgrove's relationship with a medical-device company, AtriCure, and the Clinic's role in a venture capital firm that invested in the company. Cosgrove sat on AtriCure's board of directors and served as a general partner of the venture firm, Foundation Medical Partners.

A Paul Krugman column, appearing in the Dec. 18th (yesterday's) Houston Chronicle, draws the broad outlines as he sees them:

Crucial scientific research and crucial medical decisions have to be considered suspect because of financial ties among medical companies, medical researchers and health care providers.

That should come as no surprise. The past quarter-century has seen the emergence of a vast medical-industrial complex, in which doctors, hospitals and research institutions have deep financial links with drug companies and equipment makers. Conflicts of interest aren't the exception — they're the norm.

Sunday, December 18, 2005

"Donations complicate Philip Morris tobacco suit" is the headline to a St. Louis Post-Dispatchstory published yesterday. It begins:

SPRINGFIELD, ILL. A lobbying group that filed a brief defending Philip Morris USA in a massive
Illinois lawsuit contributed more than $1 million last year to state Supreme
Court Justice Lloyd Karmeier, who helped decide that suit in the tobacco
giant's favor last week.

Meanwhile, the St. Louis-area lead attorney for the losing side had donated
more than $100,000 to groups opposing Karmeier's election.

There is nothing illegal about the donations, as Illinois law doesn't limit the
source or size of campaign contributions to judges or anyone else. However,
campaign reform advocates say the circumstances still raise concern.

"This is a very good example of why both sides were so interested in this
race," said Cindi Canary of the Illinois Campaign for Political Reform. "Our
judicial system is in the middle of a high-stakes shootout. It makes it very
difficult for anyone who gets to the bench to insulate themselves from their
contributors."

Environment - New industrial park in Kentucky wins round in court

"New industrial park wins round in court" is the headline to this story by James Bruggers in the Louisville Courier Journal. Some quotes:

A federal judge has thrown out a lawsuit by environmentalists that sought to stop construction of a large industrial park in Bowling Green.

In their suit, two environmental groups and several individuals had argued that because millions of federal dollars were being spent on development of the Kentucky Trimodal Transpark, and federal agencies were making decisions that could be considered major, the project required a full-blown environmental impact study. * * *

But U.S. District Judge Ricardo M. Urbina in Washington, D.C., disagreed. In a ruling Thursday, Urbina found that one of the defendants, the U.S. Environmental Protection Agency, had not yet done enough to require a study, so the court lacked jurisdiction in the case.

The judge also ruled that it was too late to rule on the actions of another defendant, the Tennessee Valley Authority, which provided $500,000 to help a transpark tenant set up an industrial plant there.

Citing an earlier ruling in a similar case, the judge wrote that "the Court cannot undo what has already been done." * * *

Betsy Bennett, a Louisville attorney who worked on the case for plaintiffs who included Karst Environmental Education and Protection Inc. and Warren County Citizens for Managed Growth, called the ruling "disappointing" and "frustrating."

The judge is "telling us we are both too early and too late," she said, adding that plaintiffs are considering an appeal.

Ind. Law - More on: County to jail architect: Pay up or get sued

The Gary Post-Tribunereports today on the dispute between the Porter County Commissioners and the county jail’s architects, also the subject of a Dec. 14th story in the Munster (NW Indiana) Times, reported here in the ILB. Some quotes from the story by Jim Stinson:

The Porter County commissioners are stepping up their demands for $355,000 from the county jail’s architects, spurred on because the firm is not communicating with the county attorney.

Officials said a recent letter could lead to a lawsuit.

Commissioners sent a letter Monday to Schenkel Shultz Architecture of Fort Wayne threatening legal action over a Sept. 6 breakout from Porter County Jail.

Porter County Commissioner President Bob Harper charged the letter comes after the firm refused to further discuss the issue with Gwenn Rinkenberger, the commissioners’ attorney.

“They’re not communicating with her,” said Harper. “We’re going to pursue this thing.”

Commissioners believe the jailbreak was the result of poor planning and bad materials. The $38 million facility was completed and operational in late 2002.

The Indianapolis Star has extended coverage today on the requirement that beginning Jan. 1, Indiana hospitals and outpatient surgery centers must report 27 errors to the Indiana State Department of Health. Tammy Webber is the reporter. The story's sidebar lists the errors, which include "surgery on wrong body part," surgery on wrong patient," etc. Some quotes:

The point of it all: The more that's known about how medical mistakes happen, the better the odds of preventing errors.

Tens of thousands of hospital patients across the nation are killed or injured every year as a result of preventable errors, experts say.

While the most startling mistakes include operating on the wrong body part or even the wrong patient, more common errors involve wrong dosages of medications, falls, bed sores or infections from caregivers who don't wash their hands.

"This is really about fostering a culture of safety in Indiana," said Scott Tittle, Gov. Mitch Daniels' policy director for health issues.

The issue took on a sense of urgency after a 1999 Institute of Medicine report estimated that 44,000 to 98,000 patients a year die in U.S. hospitals as a result of preventable errors, a number many experts think actually is much higher.

A lack of data prompted Daniels to order the Indiana State Department of Health to establish a Medical Error Reporting System to make Indiana hospitals more accountable to patients, Tittle said. The law [via an executive order] followed years of resistance to such reporting requirements by the health care industry. * * *

The data will be made public at least once a year, and only hospitals -- not patients or caregivers, because of privacy and liability concerns -- will be identified. That way, data reported to the state cannot be used to sue physicians, nurses or hospitals, though patients still may sue.

Because of Indiana tort laws, the most a patient can receive in a medical malpractice lawsuit is $1.25 million.

Hospitals will not punish caregivers who report errors except in cases of criminal activity or malfeasance. The goal is not to fix blame but to encourage reporting of errors so that mistakes can be prevented, Whitson said. Those assurances helped reduce the hospital industry's resistance to Indiana's new reporting rules.

Here is a link to the Governor's Executive Order, #05-10: Directive to establish medical error reporting and quality system. (Unfortunately, this executive order, which has the force of law, has been posted by the Governor's office as a scanned document, rather than as one with accessible text. Furthermore, it is difficult to locate online, even if you know that such a requirement exists. And it has, in fact, been moved since the ILB entries from the beginning of this year, making the earlier links to the Executive Order inoperative.)

Courts - Closed courts hide Kentucky juvenile crimes from public

"Closed courts hide crimes from public: Calls grow louder for lifting the curtain on proceedings; advocates for young offenders are urging caution," is the headline to this story today, by Andrew Wolfson, in the Louisville Courier Journal. Some quotes:

The result: Nobody knows whether a dangerous juvenile is in their midst, or whether Kentucky is getting its money's worth for the tens of millions of dollars it spends on prosecution, treatment and rehabilitation of young offenders.

Kentucky shrouds its juvenile courts behind some of the strictest secrecy laws in the nation, requiring the public to accept on faith that it is being protected from dangerous children -- and that innocent children are being protected from dangerous adults.

It is one of only 15 states that bar the public and press from all delinquency proceedings. * * *

[T]he Kentucky Press Association, which represents all 145 of the state's newspapers, including The Courier-Journal, is fighting in the federal courts to win access to state juvenile proceedings, citing the First Amendment's guarantees of freedom of the press. The KPA lost the first round in U.S. District Court in Frankfort and is appealing. * * *

Juvenile courts have been closed to the public since the early 20th century, when reformers designed them as informal proceedings in which, as the U.S. Supreme Court once said, "a fatherly judge and a wayward boy would sit side by side so the judge could put his arm around the bad boy and gently lead him back onto the righteous path."

But responding to public outrage over juvenile crime, legislatures in many states began in the 1980s to pull back the cloak of confidentiality.

Fourteen states either permit or require that juvenile delinquency hearings be open to the public and 21 others, including Indiana, open delinquency hearings to the public for certain offenses or for defendants of certain ages. * * *

There is little research on the impact of opening juvenile courts.

After Minnesota's chief justice opened dependency hearings in three counties in 1998 in a pilot project, the National Center for State Courts found it led to a slight increase in attendance at hearings; caused no harm to children; enhanced professional accountability; and showed that media were responsible in their coverage of the cases. As a result, the state opened such hearings statewide in 2001. * * *

In Indiana, where felony cases have been opened for more than a decade, Clark Superior Court Judge Jerry Jacobi said it has been "the greatest non-event in the past 10 years." Although defendants can move to close hearings, Jacobi said not a single one has done so in his courtroom.

This is a very long story, and is accompanied today by eight related stories, including this one reporting on juvenile proceedings in a Clark County Indiana courtroom:

In Indiana, courtrooms must be open if a juvenile faces a felony charge, and Superior Court Judge Jerry Jacobi opens his court for all criminal cases involving defendants under 18. After giving a 17-year-old probation on charges of running methamphetamine for her boyfriend, the judge said, "You are catching a break today, but you are on thin ice, young lady." * * *

The girl's public defender, J. Christopher Sturgeon, said open courts haven't been a factor.

"In all honesty, unless it's a high-profile case, the public isn't there," he said. On this day, a few family members and witnesses sat in the courtroom. A reporter from The Courier-Journal was the only media representative, comparing Indiana and Kentucky juvenile court procedures.

Addressing the most common complaint about opening juvenile court -- that it will stigmatize children, Sturgeon said that, in a small community such as Clark County, everyone already knows the juveniles who are in trouble.

Saturday, December 17, 2005

Law - Virginia Gov. Warner Moves to Protect Gays in Va. Hiring

RICHMOND, Dec. 16 -- Gov. Mark R. Warner (D) on Friday quietly amended an executive order that for the first time explicitly bans Virginia state agencies from discriminating against gays in hiring and promotions.

The policy went into effect immediately, and a spokeswoman for Gov.-elect Timothy M. Kaine (D) said the incoming governor plans to continue the policy by signing the same executive order when he is inaugurated Jan. 14.

Warner spokeswoman Ellen Qualls said the change for the first time gives gay state employees the right to challenge hiring and firing decisions based on their sexual orientation. She said the governor was moved to act after he learned that 60 percent of state lawmakers have pledged the same protections in their own hiring.

"It was a powerful message to him that even what has been considered a traditionally conservative statehouse is ready for this change," Qualls said.

But as soon as the change became public, some lawmakers and activists pledged that they would work to rescind it. * * *

Warner's decision was hailed by gay rights activists, who said it was about time that Virginia adopted policies against discrimination that are common in state and local governments across the country and in many of the nation's businesses.

The Indianapolis City-County Council is scheduled to vote on Proposal 622, the Human Rights Ordinance, Monday evening.

Ind. Courts - Attorney faces charges in theft from trust fund

"Attorney faces charges in theft from trust fund" is the headline to a story today in the Gary Post-Tribune. Some quotes:

CROWN POINT — Former Merrillville attorney Martin H. Kinney has been charged with theft for allegedly stealing money from a trust fund over which he had control.

Kinney, who surrendered his law license in November 2004, is accused of taking more than $66,000 between Dec. 8, 2004, and April 12. * * *

Kinney had been suspended by the Indiana Supreme Court from practicing law since December 2003 because of unspecified misconduct. The case file containing the allegations was sealed under court order. When Kinney resigned from practicing law, the disciplinary action was dropped.

Ind. Courts - Doctors' non-compete challenge goes to jury

A trial wrapped up Friday in the case of two Evansville cardiologists suing their physicians' group to get out from under noncompete contracts they signed.

The judge could rule next month, and if he finds that the contracts are legally binding, then the two cardiologists could be forbidden from practicing medicine in the Tri-State area for two years. Dr. Ralph D. Millsaps, a cardiologist, and Dr. Julio A. Morera, a pediatric cardiologist, both resigned last month from Ohio Valley HeartCare Inc., which Millsaps had co-founded.

Both want to continue practicing in the Evansville area and treating their longtime patients, but contracts they signed in 1998 preclude them from working for Ohio Valley's competition for two years after leaving the physicians' group.

FRANKFORT, Ky. -- The special grand jury investigating state hiring can still return indictments even if those indicted are protected by Gov. Ernie Fletcher's pardon, the Kentucky Court of Appeals ruled yesterday.

The three-judge appeals court panel unanimously rejected Fletcher's request that the grand jury be told not to return further indictments that would be covered by Fletcher's Aug. 29 pardon.

The ruling also affirmed Fletcher's claim that his pardon order extends to people who have not been indicted. But the panel said courts must avoid "meddling" by telling a grand jury who it cannot indict.

The ruling also appears to allow the grand jury to issue a report, saying that reports -- like indictments -- "are not consequences of a conviction" that a pardon would prohibit.

[Many more stories may be found by typing "Fletcher" in the search box.]

[More] Here is the Kentucky Law Blogentry on the ruling, including a direct link to the 22-page decision in Gov. Fletcher v. Judge Graham.

Ind. Law - Laws deterred retaining Colgate plant, says Gov. Daniels

In a story today in the Louisville Courier Journal, Lesley Stedman Weidenbener and Alex Davis report:

INDIANAPOLIS — Gov. Mitch Daniels said yesterday that the state failed in its bid to keep the Colgate-Palmolive Co. toothpaste factory in Indiana because it doesn't have right-to-work legislation.

"We did absolutely everything we could do, and I think they'd tell you that," Daniels said of Colgate, which plans to close its 475-employee factory in Clarksville by January 2008. "I talked a couple of times myself to the CEO and to other leadership. We made an offer we believe was competitive in every other respect."

But, he said at a news conference, "they (Colgate) want to be in a right-to-work state."

Under right-to-work laws, employees can't be required to join a union — thus making union organizing more difficult. Kentucky and Indiana do not have such laws, and analysts have predicted that Colgate's new plant will almost surely be in a right-to-work state. * * *

Greg Fitzloff, president of the Southern Indiana Chamber of Commerce, said that Colgate considered a total of 60 sites in 10 states, and that Southern Indiana was among four finalists. He said that information, provided to him by Colgate officials, demonstrates that the area remains competitive despite not having a right-to-work law.

Union officials said earlier this week that they had been told that Indiana ranked last among the four finalists and that the state had been ruled out as a site. Colgate has not confirmed that, however, and it was unclear yesterday which states are still in the running.

The chamber of commerce has not taken a formal stance on right-to-work laws, but Fitzloff said he believes Indiana would be better off if it followed some of its Southern neighbors, such as Tennessee, by enacting such legislation.

The Saturday Wall Street Journal has a front-page story (not freely available online) titled "Florida Standoff on Breath Tests Could Curb Many DUI Convictions." The lead ("lede" to some) states that a court fight over the software used in breathalizers made by CMI Group could impact other locals.

Here is an 11/18/05 story from the ABA Journal e-Report. Some quotes from the extended report:

DUI defense attorneys across the country are watching a Florida fight unfold over the right of defendants to obtain the software source code to the widely used breath-test machine known as the Intoxilyzer 5000.

At least two counties, Seminole and most recently Sarasota, have ordered the state to turn over the information. In Seminole, the state didn’t comply, and the courts suppressed breath-test evidence. So far, Bay, Brevard, Hillsborough and Leon counties have rebuffed the request.

The court challenge begins with the foundation laid by a defense expert. In the Sarasota County case, a defense expert examined the Intoxilyzer 5000s in that county and alleged that the machines had been altered and that different software versions are in use. However, he said that without the source code, which tells the device how to operate, it is impossible to determine if the changes are substantial.

Lawyers rely on Florida laws that give defendants the right to "full information" about breath-test machines and require that the machines are state-approved before being put into use.

In Sarasota County’s 12th Judicial Circuit, about 160 cases seeking the source code were consolidated, and the three judges assigned to hear criminal cases there conducted a joint hearing. On Nov. 2, they ruled that the source code must be turned over to the defense’s computer engineering expert.

"Unless the defense can see how the [breath-test machine] works and verify that it is an approved machine, it remains … nothing more than a ‘mystical machine’ used to establish an accused’s guilt," the three-judge panel wrote. Their opinion cited a state appeals court ruling and a more recent ruling by Seminole County Judge Ralph E. Eriksson. State v. Bjorkland, No. 2004 CT 014406 SC.

The date of the Bjorkland case is Nov. 2nd. In addition to today's WSJ story cited above, here is another story today, from the St. Petersburg Times. Some quotes:

LARGO - Pinellas defense attorneys began challenging breath test results Friday by using a tactic that has gotten drunken driving cases tossed out in three other Florida counties.

During a hearing Friday, defense attorneys argued the machine that tests the breath of drivers suspected of driving under the influence may be inaccurate. Worse, they say, the company that makes the machine won't hand over computer codes that would help defense attorneys evaluate the machine's accuracy.

The company says those codes are a trade secret. The State Attorney's Office says defense attorneys don't need the codes because the machines are tested for accuracy every month. * * *

The company has refused similar court orders from judges in Seminole and Sarasota counties, prompting judges to toss out breath test results in DUI cases there. Drivers can be prosecuted without the breath tests, but it can be more difficult.

If Horrox should order CMI to turn over the codes and they - as expected - refuse, hundreds of Pinellas DUI prosecutions would be in jeopardy.

Judges in several counties, including Hillsborough, Volusia, Clay and Brevard, have rejected the defense argument. Judges have split in Orange County, according to defense attorneys. * * *

Orlando defense attorney Rigo Armas, who has challenged the breath machines for years and is helping the Public Defender's Office in this case, told Horrox that attorneys have a duty to inspect every piece of evidence against their client. "That's what we're dealing with here is a mystical black box that cannot be confronted and cannot be questioned," Armas said.

But prosecutors said CMI is protected from turning over the code because of its value as a trade secret.

According to the Tampa Tribune, judges in the central Florida county of Seminole are dismissing DUI charges when the defendant asks for information on how the breath test works. Apparently the manufacture of the device is unwilling to release the code to the state, and all four judges in the county have been dismissing DUI cases when the state cannot provide the requested information. Could this apply to other situations where technical means (radar guns, video surveillance, wire-tapping, etc.) are used to gather evidence?

The second, from October, asks whether this is part of a larger trend:

With software bugs being a fact of life, consumers and organizations could claim that they need to be able to verify an application's source code before they accept that their calculations are accurate. Think credit card transactions, speed detecting radar guns, electronic voting machines.

The electronic voting machine issue was the first thing I thought of, but as the precipitating factor for the Florida DUI challenges, rather than the reverse.

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending December 16, 2005. There are 40 Court of Appeals cases (a number of these are cases reversed and remanded) listed this week, plus 3 Tax Court cases.

One of the cases is intriguingly named: Town of Flora v. The Appeal by an Aggrieved Party of the Flora Town Council's Adoption of an Ordinance Vacating a Certain Public Way Known as the North Washington St. Extension. The trial court was reversed, in an opinion by Chief Judge Kirsch.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Ind. Court. - State Clerk of Courts David Lewis has visited all 92 county trial court clerks

The Dec. 14th issue of the Indiana Lawyer has a nice article starting on page 2 reporting that Indiana Clerk of the Courts David C. Lewis has visited "every trial court clerk in each of Indiana's 92 counties" over the past 18 months. More:

Lewis said he was amazed at the number of clerks who told him not only was he the first clerk to visit them but the first state official period.

Ind. Decisions - Two opinions from the Court of Appeals, dealing with revocation of probation, and with the Indiana Dormant Mineral Act

Appellant-defendant Unsoon Podlusky appeals her revocation of probation where the trial court ordered her to serve a two-year suspended sentence in the Department of Correction. Specifically, Podlusky argues that the evidence was insufficient to support the revocation and that the trial court erred in ordering her to serve the suspended sentence. Concluding that the evidence was sufficient to support Podlusky’s probation revocation, and finding that the trial court did not abuse its discretion in ordering Podlusky to serve her originally suspended two-year sentence, we affirm the judgment of the trial court. However, as we point out in our discussion below, it is our belief that the trial court was not required to impose the entire suspended sentence in this instance.

Judge Mathias' concurring opinion concludes:

[C]ontrary to the majority’s conclusion, I believe the language in Stephens is unambiguous. Unless and until our Supreme Court modifies or clarifies its Stephens holding, under the current state of the law, I believe that when a trial court revokes a defendant’s probation, any executed time imposed, when combined with any executed time previously ordered and served, must at least equal the statutory minimum sentence.

Law - Constitutional ban on corporate farming held to violate Commerce Clause and ADA

A very brief AP item in the DesMoines Register today reports that a federal judge yesterday "rejected Nebraska's ban on corporate farming as unconstitutional. * * * At least nine states including Iowa and Nebraska passed laws in the 1970s and 1980s to restrict corporate farm ownership."

U.S. District Judge Laurie Smith-Camp said the ban violates the commerce clause of the U.S. Constitution and the Americans With Disabilities Act.

Attorney General Jon Bruning said his office plans to appeal the ruling.

The lawsuit was filed by several ranchers, including former state Sen. Jim Jones, who said the ban hindered them in trying to form family corporations to preserve their operations or to combine with neighbors.

The lawsuit said I-300 violates the Americans With Disabilities Act because it requires at least one family member who owns the farm to be engaged in day-to-day physical activities on the farm. That, according to the lawsuit, discriminates against people with disabilities.

The ban exempts farms that are family owned and operated, nonprofit corporations, American Indian tribal corporations, land used for seed or nursery purposes and land used for research or experimental purposes. * * *

Last year, the U.S. Supreme Court refused to hear an appeal of a similar decision, which found that South Dakota's ban on corporate farming was unconstitutional.

Law - New Michigan law permits vintners inside and outside the state to ship their products directly to consumers

"Governor signs bills allowing direct wine shipments to consumers" is the headline to an AP story published in the Detroit Free Press. Some Quotes:

TRAVERSE CITY - Michigan's emerging wine industry could become a big-time player now that vintners inside and outside the state can ship their products directly to consumers, a spokesman said.

"It opens us up to becoming a national wine industry," Donald Coe, president of the trade association WineMichigan, said Thursday after Gov. Jennifer Granholm signed legislation granting direct-shipping rights. With out-of-state wineries allowed to sell directly to Michigan residents for the first time, Michigan wineries will get the same access to buyers in other states, said Coe, managing partner of Black Star Farms in Suttons Bay. * * *

The legislation represents a hard-won compromise between vintners and wholesalers - regulated middlemen who buy from winemakers and sell to licensed retailers.

The U.S. Supreme Court this year struck down Michigan's policy of allowing only in-state wineries to ship directly to Michigan residents, saying it gave them an unfair competitive advantage. Under the new laws, any winery can send up to 1,500 cases a year to Michigan residents.

But the laws continue to require out-of-state wineries to use a wholesaler to get their wines to Michigan restaurants and retailers, while in-state wineries can sell directly to those establishments.

In a Dec. 6 letter to legislative leaders, state Attorney General Mike Cox warned that such unequal treatment "is very vulnerable to a constitutional challenge." If the courts threw out that provision, all sales to restaurants and retailers would have to go through wholesalers.

Direct shipment to consumers by in-state and out-of-state wineries could continue. Even so, Cox said, Michigan would have to pay the costs of defending a lawsuit - and, if it lost, the prevailing sides attorney fees.

Representatives of Michigan vintners and wholesalers who attended the signing ceremony said their compromise included an agreement not to challenge the laws in court. But the deal doesnt cover out-of-state interests.

Sen. Michelle McManus, R-Lake Leelanau, a sponsor of the legislation, said it focused primarily on direct shipment to consumers because that was the subject of the Supreme Court ruling.

Two related stories from earlier this month. The Peru Indiana Tribune had a story Dec. 5, by Sherry Loshnowsky. Some quotes:

A local winery is taking advantage of a recent ruling that allows Indiana wineries to ship their products to homes inside the state, at least for now.

A Marion Superior Court judge signed a preliminary injunction last week that allows in-state wine shipments through March 1. By that time, some wineries hope, the state legislature could pass a bill allowing in-state wine shipments.

The ruling is the result of a lawsuit filed last month by nine state wineries against the Indiana Alcohol and Tobacco Commission. After a U.S. Supreme Court decision overturned wine shipping laws in New York and Michigan, the commission sent a letter to Indiana wineries barring them from shipping wine to in-state customers.

The NY Times had a story Dec. 9th, that may not be freely availab;le on line much longer, headlined "Still No Wine in the Mail, Months After a New Law." Some quotes from the lengthy piece:

New Yorkers with a taste for California syrahs or the latest Willamette pinot from Oregon were heartened by the State Legislature's decision last summer allowing them to buy these and other out-of-state wines directly, either through the Internet or over the phone.

But as the holiday season nears, wine lovers have bumped up against the bureaucratic ways of New York State, whose agencies - as of Thursday night at least - have yet to carry through on the law and allow shipping companies to actually deliver wine to New York from other states.

Officials with FedEx, U.P.S. and groups representing California wine growers say that one of the holdups has been the state's demand that delivery employees, who work with hand-held computers, fill out cumbersome paper forms when making the deliveries.

An official for the State Liquor Authority said that the paperwork requirement was not the cause for the delay. And on Thursday evening, a state official said that an announcement would be made on Friday that U.P.S. had been approved to make wine deliveries in the state. But almost five months after the law's passage, wine lovers might be excused for not believing it until they see it.

Thursday, December 15, 2005

A story by Bob Kasarda of the Munster (NW Indiana) Times fills in some of the facts in Ben-Yisrayl, Obadyah v. Davis, decided Tuesday by the 7th Circuit (see 12/13/05 ILBentry here). Some quotes:

A federal appeals court upheld an earlier ruling setting aside the Porter County convictions of Christopher Peterson, who was held responsible for a number of shotgun killings across Northwest Indiana during 1990. But Peterson will not be walking out of prison anytime soon. [This is the 7th Circuit's opinion, accessible via the above link.]

Porter County officials are not giving up on the case, and the Indiana Court of Appeals upheld the 120-year sentence Peterson received for killing two men in Lake County, according to Porter County Chief Deputy Prosecutor Brian Gensel. [This is an Indiana Court of Appeals opinion, also issued Tuesday, Dec. 13th. It is NFP, but the ILB obtained a copy of it this evening. Here it is.]

The ruling involving Porter County came Tuesday from the federal 7th Circuit Court of Appeals, Gensel said. The ruling upheld a federal district court's decision in 2003 that set aside Porter County's conviction due to problems with the trial transcript and Porter County Prosecutor James Douglas' comment to the jury during closing arguments in 1992 that Peterson had not testified on his own behalf. * * *

Douglas has asked the Indiana attorney general's office to seek a rehearing with the 7th Circuit Court and to present the case to the U.S. Supreme Court. If those attempts fail, Gensel said his office intends to refile the murder charges against Peterson within the allotted 120 days.

Gensel said his office is prepared to retry the case out of principle and to head off surprises at the appellate level involving the Lake County conviction. "Often times, these are never over," he said.

The state court ruling involving Lake County came the same day as the federal decision, Gensel said.

I agree with the majority’s determination that the trial court did not err in dividing the marital properly evenly between the parties. I respectfully disagree, however, with the majority’s determination that the trial court properly imputed Father’s pre-incarceration income in calculating his initial support obligation.

We are writing on a more or less blank slate on this issue.

Jai J. Buntin v. State of Indiana is a sentencing decision where the Court finds "that the evidence was insufficient to sustain Buntin’s conviction for auto theft and that the trial court properly sentenced Buntin as to his conviction for theft. Vacated in part, affirmed in part."

Further, even if Blakely were to apply to the imposition of consecutive sentences, we would hold that there was no violation here because French admitted to the existence of multiple victims when he entered into the plea agreement and, again, at the guilty plea hearing. See Weis v. State, 825 N.E.2d 896, 906 (Ind. Ct. App. 2005) (noting Blakely not implicated where defendant admits to facts underlying aggravator). In sum, the trial court did not abuse its discretion or violate French’s constitutional rights when it imposed consecutive presumptive sentences.

Ind. Decisions - Juvenile record can be weighed

"Juvenile record can be weighed" is the headline to an AP story posted early this morning on the Indianapolis Star website. The decision referenced is Kenna D. Ryle v. State, which was a subject of this ILB entry yesterday. Some quotes from the AP story:

Judges can weigh a person’s juvenile record without deferring to juries when sentencing a defendant for crimes committed as an adult, the Indiana Supreme Court ruled.

The unanimous decision clarified an area of sentencing guidelines made cloudy by recent court rulings shifting much of the decision-making power in sentencing from judges to juries. * * *

Under the 2004 U.S. Supreme Court ruling [Apprendi v. New Jersey], a jury must decide the validity of a defendant’s prior convictions before they can be used to help determine a sentence. But courts have differed over whether that requirement applies to juvenile adjudications, in which there is no jury trial. The Indiana Supreme Court decided it does not apply.

Otherwise, Chief Justice Randall T. Shepard wrote, juvenile cases would have to be retried in front of juries, or juries in adult trials would have to determine if the defendant had been found guilty in a previous juvenile proceeding — a matter of record.

“A decision to require the jury to determine the ’fact’ of prior juvenile adjudications would result in an untold number of defendants clogging the trial courts ...,” Shepard wrote.

Environment - Controversial Lake County medical waste plants are up for approval

"Controversial medical waste plants are up for approval" is the headline to this story today in the Gary Post-Tribune. Some quotes from the story by Andy Grimm:

Local solid waste authorities will cast a final vote on whether the state’s first two medical waste processing plants should be located in Lake County.

The Lake County Solid Waste Management District board will vote tonight on approval for medical waste plants in Gary and East Chicago that have drawn protest from a coalition of residents. The meeting begins at 7 p.m. in the Lake County Government Center auditorium.

The board voted 18-3 in October that there was no need for the facilities, which each would steam sterilize medical waste ranging from old documents to biological hazards. * * *

A coalition of church groups in the two cities, which have predominantly black and Hispanic residents, have said the attempts to locate the plants in the communities is “environmental racism.”

Abrade and Midwest officials both have said they chose the sites because they are located near major highways.

For more, see this 10/22/05ILB entry and this one from 8/20/05. Locate more by typing "medical waste" in the search box.

A Court of Appeals panel yesterday heard oral arguments in Planned Parenthood of Indiana v. Steve Carter, et al. You can listen to them here via the Courts' Oral Aruments Online service. The description on the Court site:

Planned Parenthood of Indiana, on its own behalf and on behalf of its patients, appeals the denial of its motion for preliminary injunction against Steve Carter, in his official capacity as Attorney General of the State of Indiana, and Allen K. Pope, in his official capacity as Director, Indiana Medicaid Fraud Control Unit.

The AP has coverage of the arguments today, in a story by Ken Kusmer, available here via the Louisville Courier Journal. Some quotes:

The state argued in court yesterday that Planned Parenthood of Indiana should be required to turn over Medicaid records sought by the attorney general's office.

In a hearing before the Indiana Court of Appeals, the state maintained that the office is entitled to see medical records of Medicaid recipients under age 14. * * * At stake is whether a federal statute on Medicaid fraud can compel health-care providers to turn over records that could identify girls and boys under age 14 who are sexually active. Indiana law regards sex with a child under 14 as child abuse, no matter the age of the other person.

State law also compels anyone with knowledge of child abuse to report it to child welfare officials or police.

Planned Parenthood's attorney, Ken Falk of the Indiana Civil Liberties Union, said his client complies with the reporting law. But even if it didn't, it would be guilty only of failure to report, not neglect. "Failure to report is not neglect because you're not the injurer of the child," Falk said, and is not covered by the federal Medicaid fraud law.

Indiana Solicitor General Thomas M. Fisher said the point was whether Planned Parenthood can invoke the constitutional right against unlawful search and seizure on behalf of its clients.

"Aren't they on the horns of a dilemma here?" asked Judge Edward W. Najam Jr., referring to Planned Parenthood. The agency faced a choice of either violating its patients' rights or losing Medicaid funding for not complying with disclosure rules, he reasoned.

The Indiana Court of Appeals on Wednesday considered whether the state may seize patient records from Planned Parenthood of Indiana clinics, with the judges pressing the state lawyer about what might be gained by the seizures. They also asked Planned Parenthood's attorney for the basis of claims that the seizures would violate the law. * * *

The group's bid to stop the seizures -- the Medicaid unit has sought more than 80 records -- was rejected by Marion Superior Court Judge Kenneth H. Johnson. He found that the seizures were permissible, ruling that society has an overriding interest in protecting children. The plaintiffs were then granted a stay by the Court of Appeals pending that panel's review of Johnson's ruling.

During Wednesday's oral arguments, Falk said Planned Parenthood reports possible abuse orally, a report that may or may not be noted in clinic records. Judge Michael Barnes wondered aloud how useful the records might be in uncovering abuse, given that a note of a report could be tough to verify. By taking the records, Barnes asked Fisher, "how are you ahead?"

Replied the attorney: "We would have investigated an (abuse) complaint." Fisher said that as a Medicaid provider, Planned Parenthood signed a sweeping agreement to cooperate with state investigations. This prompted a question from Judge Edward W. Najam Jr.: "Is it your contention that if you sign this agreement, then it's Katie bar the door -- a blank check?"

Falk said that as far as he can tell, the Indiana fraud unit's efforts to seize records to determine whether a group is reporting abuse is "unique in America." He said he has reviewed 140 cases nationally involving Medicaid units and could not find a similar case. "The Medicaid Fraud Control Unit has certainly gone too far," he said.

Ind. Decisions - More on: Bosma to ask judge to reconsider ruling

Updating this entry from yesterday: Indiana House Speaker Brian Bosma is asking federal Judge David Hamilton to reconsider his ruling in Hinrichs v. Bosma. Here are the filings submitted by Attorney General Steve Carter:

Defendant's Motion to Alter or Amend Judgment - Defendant:

moves the Court to alter or amend the judgment entered in this action on November 30, 2005. This motion is made on the following grounds:

(1) the injunction manifests clear legal error because it exceeds the Court’s jurisdiction in taxpayer-standing cases;

(2) the injunction manifests clear legal error because it is overly broad and does not conform to the conducted challenged or the relief requested; and

(3) the injunction is vague and gives the Speaker of the House no clear standard for application.

A memorandum in support of this Motion and a Motion to Stay Judgment pursuant to Rule 62(b) of the Federal Rules of Civil Procedure are filed contemporaneously herewith.

WHEREFORE, Defendant respectfully requests this Court to grant its Motion to Alter or Amend Judgment and asks this Court to modify the injunction

(1) to enjoin only the expenditure of funds on correspondence, photographs, or streaming video with respect to prayers the Court has determined to be unconstitutional, or in the alternative,

(2) to enjoin only sectarian opening invocations made pursuant to House Rule 10.2, and

(3) to clarify Defendant Bosma’s obligations under the Court’s injunction.

Defendant's Motion to Stay Judgment - Defendant "moves this Court to stay the enforcement of the declaratory judgment and permanent injunction entered on November 30, 2005 until the disposition of the Defendant’s Motion to Alter or Amend Judgment."

Defendant's Memorandum in Support of Motion to Stay Judgment - available here. Some quotes from the memo on why the motion should be granted:

The potential harm to the plaintiffs is minimal. The only cognizable injury suffered by the plaintiffs in this case is that their taxpayer dollars have been spent on conduct the Court has determined to be unconstitutional. Beyond that, of course, they are offended by prayers in the House that are not “non-sectarian.” However, the traditions of the House that have led to the Court’s injunction have been in place for decades at least, and no one could plausibly claim that the House has become a theocracy as a result. This is not even a case where the personal conduct of the plaintiffs is being limited by any unenjoined activity of the Speaker. The point is that, while Establishment Clause values are certainly important, the plaintiffs actually stand to suffer no material harm if the Court’s order is stayed pending resolution of this motion.

The potential harm to the Speaker substantially outweighs the potential harm to the plaintiffs. * * * {I]t is unlikely the Court will rule on the Rule 59(e) motion before January 4, 2006. If so, the Speaker may be greatly injured by having to enforce the injunction as-is. As things stand, in order to avoid allegations of non-compliance, the Speaker may be forced to undertake extraordinary efforts to prevent any prayers except “non-sectarian” prayers during all official House proceedings, even to the point of preventing members of the Indiana House from engaging in lawfully protected conduct, including their rights to use sectarian prayer as a means of debate on the floor of the House. This not only infringes on the rights of those members, but also threatens the proper functioning of a co-sovereign’s lawmaking body. Such restraint on the individual conduct of the people’s elected representatives and on the very operation of republican governance is very serious harm, and it dramatically outweighs any minimal harm the plaintiffs could possibly suffer during the pendency of the Rule 59(e) motion. * * *

The circumstances of this Case constitute the paradigmatic “exceptional circumstances” sufficient to stay a judgment. The Court’s injunction affects not only the Speaker, but also every House member and every person who sets foot on the floor of the Indiana House. It interferes with a longstanding House tradition of permitting uncensored prayer by a variety of clerics without regard for their religious beliefs. Without further guidance by the Court it leaves unanswered many questions regarding the intended scope of the injunction which will divert time and attention from the legislative function of the Indiana House. Particularly in light of the minimal nature of any potential harm a stay could cause the Plaintiffs, these circumstances should be enough to stay the judgment pending appeal, let alone for the much shorter life of a Rule 59(e) motion. While a motion to stay the judgment pending appeal is premature at this point, the Court should at least stay the judgment until it has a chance to consider the Speaker’s arguments for reconsideration fully and completely.

INDIANAPOLIS – Republican House Speaker Brian Bosma said he will use “all legal means” to ensure prayer continues in the Indiana House, including going to the U.S. Supreme Court if necessary.

His first move, though, was to file a motion Wednesday with U.S. District Court Judge David F. Hamilton, asking him to reconsider his Nov. 30 decision limiting official prayer in the chamber.

While the case is under review, Bosma wants Hamilton to stay the order barring sectarian prayer and requiring Bosma to advise clergy not to cite Jesus Christ, as well as reverse the permanent injunction on the content of prayer.
He also intends to file an appeal with the 7th Circuit U.S. Court of Appeals in Chicago. * * *

The speaker said Wednesday he wants the judge to clarify what speech the ruling pertains to because his legal team thinks it might also affect lawmakers talking from the floor on bills or while taking moments of privilege to speak on other subjects.

The ruling referenced on numerous occasions the official House prayer, which is provided for in House rules.

Bosma said the appropriate remedy – if any – should have been prohibiting the expenditure of state dollars on the prayer. Last session’s estimate was $450, which includes letters of invitation to clergy, a picture in the chamber and airing the prayer live on the Internet.

Indiana will take its fight to the U.S. Supreme Court, if necessary, to overturn a federal court ruling that bars invoking Jesus and other sectarian prayer in the legislature, House Speaker Brian Bosma vowed Wednesday.

That may be exactly what is required, experts say. "If there's any chance of a successful appeal or attempt to reverse what (U.S. District) Judge (David) Hamilton has decided, it would only be if the Supreme Court takes up the case," predicted David O. Conkle, a professor of law and adjunct professor of religious studies at Indiana University in Bloomington.

That's because Hamilton's ruling is based on a 1983 Supreme Court decision, Marsh vs. Chambers, which upheld prayer in the Nebraska Legislature after references to Christ had been removed.

Lower courts are loath to contradict the nation's highest court.
Hamilton's Nov. 30 decision barred prayers specific to one faith. His decision was made in a lawsuit brought by the Indiana Civil Liberties Union.

Wednesday, December 14, 2005

Thanks to Howard Bashman's How Appealing, here is a link to an article by Donald Lee titled "Lack of scientific evidence short-circuits video-game bans," via the First Amendment Center. It begins:

Even before a federal trial court judge struck down Illinois’ attempt to ban the sale of violent video games to minors, proponents of such bans knew they had a legal problem. Now, after that ruling, they know their bigger problem is one of science.

In Entertainment Software Association v. Blagojevich, Matthew Kennelly became the latest judge to hold that laws regulating the sale and rental of violent video games to minors violate the First Amendment. Courts considering state laws in Michigan and Washington and local ordinances in Indianapolis and St. Louis County, Mo., have issued similar rulings.

It concludes:

Even supporters of the laws seemed resigned to the bans’ fate. “I supported the legislation knowing full well that it was going to get overturned because it had been overturned in other states,” State Sen. Dave Syverson told the Rockford (Ill.) Register Star. “This legislation was really more symbolic.”

Symbolic, perhaps, but also unconstitutional. And — unless and until their supporters find better science — video-game bans are likely to remain that way.

Environment - Northwest ethanol smell still lingers

"Northwest ethanol smell still lingers" is the headline to a story today in the South Bend Tribune. Some quotes:

The smell originates from the organic waste produced by the New Energy plant. The effluent is treated and goes into the city's combined sewer and storm overflows. But treating the effluent so it doesn't make people ill has been an ongoing challenge.

Jack Dillon, city director of environmental services, said a pump problem at the ethanol Friday has been repaired. For a few days at the beginning of December, the city also ran out of ferrous chloride, an iron salt that has been successfully used to control effluence odors in other cities. * * *

The city began adding ferrous chloride to the effluent coming from the plant in November. It's a pilot program that the city is still experimenting with, Dillon said. The amount of ferrous chloride put into the treatment process is constantly adjusted to find which rate works best. Tests are performed each day, and so far the new chemical has been working, Dillon said. Environmental services is continuing to order more of the iron salt as needed. * * *

The New Energy Corp. plant, which opened in 1984, has caused odor problems for years. The Indiana Department of Environmental Management and U.S. Environmental Protection Agency found the plant was emitting toxins into the air in 2002. The plant added a $2.7 million regenerative thermal oxidizer to minimize toxins and control the odor. Once the oxidizer collects the emissions it burns them, creating water.

Dillon said city officials are planning on meeting with New Energy in January to discuss the ferrous chloride results and the company's role in solving the problem.

Ind. Decisions - Bankruptcy decision by Judge Posner today [Updated]

The question presented by this
appeal is whether a debtor may obtain a discharge in
bankruptcy from a tax debt owed to the Internal Revenue
Service if he failed to file a return until after the IRS assessed
the tax that he owed. The bankruptcy judge, seconded by
the district judge, answered yes, and the government
appeals. * * *

Section 523(a)(1)(B)(i) of the Bankruptcy Code forbids
the discharge of federal income tax liability with respect
to which a “return” was required to be filed but “was
not filed.” Payne argues that he filed a return for 1986,
all right, albeit six years late and after the IRS had gone to
the trouble of figuring out what he owed for that year and
assessing him the amount. The government argues that an
untimely post-assessment return is not a “return” within the
meaning of the statute and that therefore Payne has never
filed a 1986 return and so cannot be discharged
from liability for the taxes that he owes for that year.

The Bankruptcy Code does not define “return.” Nor for
that matter does the Internal Revenue Code. But there is
case law interpreting it because a lot can turn on whether a
submission to the IRS qualifies as a return. Taxpayers are
required to file tax returns, so a taxpayer who files a
document that purports to be, but is held not to be, a return
can be in serious trouble.

Our conclusion [is] that the return that Payne filed in 1992
was not a “return” for purposes of allowing him to discharge
his tax liabilities in bankruptcy * * *.

The judgment is reversed with directions to deny the
discharge.

EASTERBROOK, Circuit Judge, dissenting. My colleagues
show convincingly that the absence of a statutory definition
of the word “return” in tax law leaves the judiciary with
discretion to vary the definition according to both economic
and legal context. * * *

The document that Payne filed is a tax return because
it contains all of the required information and may
have helped the agency, as the 2002 regulation demonstrates.
Payne filed this return more than two years before
his bankruptcy commenced, so §523(a)(1)(B)(ii) makes these
taxes eligible for discharge. The United States has
not argued—and we cannot properly declare sua sponte—
that Payne has willfully attempted to defeat or evade any
tax, so §523(a)(1)(C) does not foreclose a discharge. The
judgment discharging this debt therefore should be affirmed,
no matter what we think of Payne’s care, ethics, or
strategy. There is no general equitable override to the
Bankruptcy Code—as the IRS is quick to observe when a
judge might be tempted to do the taxpayer a favor. * * *
That principle works both ways.

NOTE: Thanks to the ILB reader who wrote in so promptly to tell me my summary did not make any sense -- I had combined Judge Posner's ruling with Easterbrook's dissent, a dangerous combination. Although I have now corrected the above, I include Branden Robinson's summary, which may be better than my own:

Hello Ms. Oddi,

I found your summary of _In re Payne_ today a little confusing.

The second quoted paragraph:

The document that Payne filed is a tax return because it
contains all of the required information and may have helped
the agency, as the 2002 regulation demonstrates. Payne filed
this return more than two years before his bankruptcy
commenced, so §523(a)(1)(B)(ii) makes these taxes eligible
for discharge. The United States has not argued—and we
cannot properly declare sua sponte— that Payne has willfully
attempted to defeat or evade any tax, so §523(a)(1)(C) does
not foreclose a discharge. The judgment discharging this
debt therefore should be affirmed, no matter what we think
of Payne’s care, ethics, or strategy. There is no general
equitable override to the Bankruptcy Code—as the IRS is
quick to observe when a judge might be tempted to do the
taxpayer a favor. * * * That principle works both ways.

is a quote not from the majority decision authored by Posner,
but from Easterbrook's dissent.

The majority held, in my lay reasoning, that Payne's purported
tax return wasn't actually one because he filed it with bad
intent, and therefore it could not be used to establish a
dischargable debt under bankruptcy. Posner, writing for the
majority, said:

The influential _Hindenlang_ decision (on which the other
two discharge cases, _Moroney_ and _Hatton_, build) states
that a return filed after the assessment of tax can never
be adjudged an honest and reasonable endeavor to comply with
the tax law. [...] Payne, however, offered no excuse (we
said his lawyer's unsubstantiated assertion at oral argument
doesn't count) for his six-year delay in filing; and the
assessment was hardly precipitate.

The judgment is reversed with instructions to deny the
discharge.

Thank you for maintaining the Indiana Law Blog; I find it an
invaluable resource.

Defendants—numerous insurance companies—appeal the trial court’s granting of Coachmen Industries, Inc. (“Coachmen”) and Coachmen Industries of Texas, Inc.’s (“CIT”) Motion for Partial Summary Judgment on Choice of Law. The dispute at the center of this interlocutory appeal centers upon whether, as advocated by Coachmen, the substantive law of Indiana or whether, as advocated by the defendant insurance companies, the substantive law of Texas should apply. The trial court determined that the substantive law of Indiana should apply. Because Indiana is the state with the most intimate contacts—as set forth by Indiana case law and the Restatement (Second) of Conflicts § 188 and § 193—we affirm the trial court.

When the trial court ordered an enhanced sentence for appellant Kenna D. Ryle’s manslaughter conviction, it cited his four juvenile adjudications and the fact that he was on probation when he committed the crime. Our analysis of Apprendi v. New Jersey leads us to conclude that these factors are proper sentencing considerations for a trial judge and need not be submitted to a jury.

In Williams, CJ Shepard writes:

Appellant LaMar Williams struggled with Indianapolis Police Department officers during an investigatory stop and then fled in his vehicle. A jury found Williams guilty on four of the State’s five charges. The trial court found four aggravating factors and two mitigating factors and enhanced Williams’ sentence on one of the counts. Williams appealed on Sixth Amendment grounds, citing Blakely v. Washington, 542 U.S. 296 (2004). We affirm. * * *

Williams’ prior adult conviction and juvenile adjudication were adequate to support the relatively modest enhancements imposed. We therefore affirm.

Ind. Law - County to jail architect: Pay up or get sued

"County to jail architect: Pay up or get sued" is the headline to a story today in the Munster (NW Indiana) Times that begins:

Porter County has presented the designers of its jail with a bill and an ultimatum.

County Attorney Gwenn Rinkenberger wrote to jail architects Schenkel Shultz, of Fort Wayne, on Monday that the ceiling design of some cells allowed one inmate to get out of his cell and into the ceiling in 2004 and two inmates to escape from the jail in September 2005.

If the architect does not accept responsibility and pay the $355,000 it cost to fix the ceiling, Rinkenberger writes, "that will leave us with no other course but to file suit against Schenkel Shultz for this design error.".

Ind. Decisions - Bosma to ask judge to reconsider ruling [Updated]

"Bosma to ask judge to reconsider ruling" is the headline to this story by Harold J. Adams in today's Louisville Courier Journal. Some quotes:

Indiana House Speaker Brian Bosma said he will appeal a federal court order barring sectarian prayers to open daily sessions.

Bosma, R-Indianapolis, will hold a 10 a.m. press conference today in the House chamber to announce his plans, he said yesterday while in New Albany.

The speaker said he will ask U.S. District Judge David Hamilton to reconsider and clarify his Nov. 30 ruling in a case brought by the Indiana Civil Liberties Union. He said lawyers also will file a notice of appeal and ask Hamilton to delay his order in the meantime.

The appeal itself, which would be heard by the Chicago-based U.S. Seventh Circuit Court of Appeals, would not be filed until Hamilton responds to the motion to reconsider.

[Updated] The Indianapolis Star, shortly before noon, has posted a story by Mary Beth Schneider, on the Bosma appeal:

Bosma said the Indiana Attorney General’s office will file procedural motions asking Hamilton to reconsider his order and to suspend enforcement of his order while appeals continue. In addition, Bosma said, attorneys will give notice that the state intends to file an appeal with the Seventh Circuit Court of Appeals in Chicago.

Ind. Decisions - Appeals ruling may open more records to public

"Appeals ruling may open more records to public: Knightstown can't hide documents private firm created on its behalf" is the headline to this story today in the Indianapolis Star, by Bill McCleery. Some quotes:

A small-town dispute that started with the firing of a police dispatcher has led to a court ruling bolstering access to public records statewide.

The Indiana Court of Appeals ruled Tuesday that a weekly newspaper had a right to see details of a settlement that Knightstown reached with the former employee.

Knightstown officials had kept secret most details of the 2003 settlement with GiGi Steinwachs, the former dispatcher. After she was fired in 2002, Steinwachs sued the town, saying she had been sexually harassed, physically assaulted and intimidated on the job.

The appeals court ruling overturned a county court ruling that the town's insurance carrier, not the town itself, was party to the settlement and therefore the settlement was not subject to Indiana's open records laws.

"Knightstown focuses on the argument that the definition of public record does not include documents created by private individuals acting on behalf of a public agency," wrote Judge Patricia A. Riley for the three-judge appeals court. "This distinction is without merit." * * *

The Knightstown Banner, with a weekly circulation of 2,000 newspapers, has taken a watchdog stance in its coverage of local government and schools, challenging closed meetings and seeking public records in Knightstown, a community of 2,000 about 38 miles east of Indianapolis in Henry County.

"I've talked to many major newspapers that know they should be fighting these battles, but because it requires such major resources, they let things slide," said Kelly McBride, a consultant with the Poynter Institute, a journalism training center in St. Petersburg, Fla.

"I just think it's darned impressive that a small newspaper would devote the financial resources to fighting such a big fight."

The Banner's victory means the defendants -- Knightstown and its insurance carrier -- will be responsible for paying the paper's legal bills, said Kurt Webber, the newspaper's attorney. * * *

An attorney for Knightstown's insurance carrier criticized the court's decision. "We think the court has painted the public record issue with too broad a brush," said Steven D. Pearson, a Chicago-based attorney representing Governmental Interinsurance Exchange."

We think that if this decision is allowed to stand, it will have the unintended consequence of inhibiting parties from engaging in good-faith settlement negotiations and therefore have a chilling effect on the ability to settle cases."

He said he would consult with clients on whether to take the case to the Indiana Supreme Court, which then would choose whether to hear it.
Knightstown officials also want time to digest the court decision before deciding on their next move, said Jim Broderick, Town Council president.

Here is an Inside Indiana Business story on the case, written by Kyle Elyse Niederpruem before the ruling came down, but still of interest:

The attorney representing the town argued that insurance companies will never be able to settle claims if settlement terms become public. A private contract attorney for a private insurer also has no obligation to maintain a record, as would a public agency. But the local newspaper that brought the case to the trial court argues that public money used to settle public lawsuits involving public employees is matter of public record—period.

In a narrowly drawn opinion of the Public Access Counselor’s office in 2004, former PAC Michael Hurst wrote that the insurance company wasn’t acting as an agent of the town but rather as an independent contractor. He states that the insurance company did not exercise the “power of government in theory or in practice.”

Though the case tickles on the edges of attorney-client privilege and subscriber agreements with insurance firms, the three-judge panel cut to the quick on what is public. Without knowing where the money went or how it was spent, Judge John Baker pointed out the settlement could have been spent on “faucets.”

“You approved $5,000 of the town’s money for what?” Baker asked attorneys representing the town and insurance company. “What was the money for, sir? Did the town buy faucets? How do I know?” Without disclosure, as Judge Patricia Riley pointed out, “the public has no knowledge” how its money was spent.

Without divulging all terms of the settlement, the questions from the judges quickly honed in on government accountability. A larger settlement that remains secret could potentially indicate some culpability on the part of public employees and raises a question whether those employees were properly disciplined or should have been discharged, for example.

To the core of disclosure, lawyers can subvert the public records law by stamping documents “work product” and there have been some well-published instances brought to light by media over the years—particularly with municipal and state agencies.

The popular wave of privatized government services will likely result in similar legal challenges in Indiana as long as accountability remains the bottom line for citizens paying for those services.

As pointed out in the last two paragraphs of this Nov. 11, 2005ILB entry, many settlements involving governmental units in Indiana currently are not made available to the public. Will the Knightstown ruling have legs?

[See also this Oct. 12, 2005 entry, about a settlement in a school case, where the Indianapolis Star reported: "The settlement agreement also prohibits either side from releasing it publicly unless required by law. The Indianapolis Star obtained a copy Tuesday after sending a public records request to the school district."]

The Indianapolis Star reports today, in a story by Michael Dabney, that:

A convicted sex offender who lives in Marion County is challenging a Plainfield ordinance banning him from the town's parks and recreation areas.

The Indiana Civil Liberties Union filed suit in Hendricks Superior Court on behalf of the man, who is identified only as John Doe. It says a portion of the town ordinance banning anyone listed on the Indiana Sex Offender Registry from Plainfield parks is unconstitutional. "He should have the same rights as all citizens, absent of a showing that he is a risk," ICLU Legal Director Kenneth Falk said Tuesday.

But town officials insist the ban adopted in 2002 is justified. "Our ordinance doesn't taint anyone. They are already tainted because they are on the sex registry," said Town Council President Robin Brandgard. "Knowing that there are sex offenders out there, we wanted to protect the citizens of Plainfield, particularly the children."

Sound familiar? See this Feb. 24, 2005 ILB entry titled "John Doe v. City of Lafayette will not be appealed." A quote from that entry: "In a split en banc decision from July 30, 2004, the 7th Circuit affirmed 8-3 Judge Sharp's (ND Ind.) ruling upholding the City of Lafayette's lifetime banning of convicted sex offender Doe from the City's parks." The Lafayette case involved a letter sent to John Doe by authorities banning him from the park "after authorities received a tip that he had been watching children at Murdock Park and having sexual thoughts about them."

We have an Indiana Court of Appeals case, Travis v. State (7/28/04), relating to the banning of an individual from a Kokomo park. As reported in the Layayette Journal & Courier at the time:

The state appeals court said a Kokomo police officer overstepped his authority when he saw Stephen L. Travis sitting on a city park bench in September 2002 and arrested him for trespass. Another officer, Greg Baldini, had encountered Travis and some other people gambling in the park two days earlier and told him not to come back or he would be arrested for trespass.

"We don't think the Kokomo case has any bearing on the John Doe case," Withered said. "First, the Kokomo situation was a criminal trespassing case, whereas this is a civil ban of Mr. Doe from city parks.

"Secondly, the Kokomo case involved a police officer issuing a ban to the individual, and the court of appeals held that the police officer had no legal authority to do so. Here, it was the city parks department, which actually controls all of the park property, which issued the ban to Mr. Doe."

And here, from Sept. 28, 2005, is an ILB entry quoting from the South Bend Tribune:

Michigan City's ban on convicted child molester Robert E. Brown from its public parks has been upheld in federal court. * * *

Robert L. Miller Jr., a judge in U.S. District Court in South Bend, ruled last week the Parks Department acted within its bounds when it passed a resolution in 2002 prohibiting Brown from the parks.

Among Brown's arguments were that the resolution violated his right to due process as well as his civil liberties by being labeled a threat to children. * * *

In his 27-page ruling, Miller said Brown's right to due process was not violated because he was given a chance to answer to the allegations at the public meeting.

The case is Robert Brown v. City of Michigan City (ND Ind., 9/19/05), available, via the ILB, here.
[More, 12:52 PM]] I just read Ed Feigenbaum's Indiana Daily Insight and see that an item, that my eyes must have glazed over when I read the blog yesterday, is relevant today. Ed reports:

(TUES) The U.S. Court of Appeals for the Seventh Circuit is being asked to hear an appeal in Brown v. City of Michigan City (05-3912). As framed by one of the briefs, this case looks remarkably similar to another recent one involving a Tippecanoe County man and the City of Lafayette. "For more than a quarter of a century Robert Brown has visited a park bordering on Lake Michigan in Michigan City, Indiana. He stays in his truck for an hour or two each day and does not leave the vehicle. When Michigan City discovered in 2002 that Mr. Brown had been convicted of child molesting in 1995, Michigan City issued an order banning Mr. Brown from all parks in Michigan City. Is the ban order a violation of procedural due process inasmuch as it was entered without proper notice and without a proper opportunity to be heard and because it was entered based on no ascertainable standards and without a proper hearing? 2. Is the ban order a violation of substantive due process because it is fundamentally irrational?"

Tuesday, December 13, 2005

Judge Gilmore to retire. LaPorte Circuit Court Judge Robert Gilmore won't run again, according to this story in the LaPorte Argus Herald. "Gilmore told The Herald-Argus Tuesday morning that when his second six-year term ends on Dec. 31, 2006, he’ll be looking for alternatives beyond the fairways. ... “I’ve absolutely loved (my tenure),” Gilmore said. “And I’m proud of the juvenile issues and school programs.”

An office manager for the Madison County court system has pleaded guilty to stealing more than $64,000 from the county over four years. Pamela King, 38, pleaded guilty to a felony charge of forgery and three felony charges of theft Monday in Madison Circuit Court.

King admitted stealing $64,029 from the Madison County Unified Courts between 2001 and 2004. She has already repaid $2,857 for making unauthorized purchases on a county credit card. * * *

King allegedly stole the money by filing fraudulent claims for payment, according to a probable cause affidavit. Sometimes she was paid for transcripts not ordered by a court, while other times she submitted claims for work another court employee did, police said. She also overcharged the county for transcripts, police said.

The forgery charge states that King used a judge's signature stamp without permission to authorize payment of her claims.

High Court makes jury duty tougher to evade.A story Monday in the Michigan City News-Dispatch reports on the new rule from the Supreme Court that "will allow jury pools to be selected from a master list that draws not only from voter registration records, but also from Bureau of Motor Vehicles and Department of Revenue records." For more, see this Oct. 24, 2005ILB entry titled "Jury pool to widen."

Ind. Courts - More on: Court ruling filling up calendars: State justices decide jailed defendants must be tried within 6 months of arrest

Bryan Corbin had a lengthy story yesterday in the Evansville Courier& Press on the impact of the recent Supreme Court ruling that. jailed defendants must be tried within 6 months of arrest. The ILB had a related entry on December 4th, where the Fort Wayne Journal Gazette reported that the ruling "has forced attorneys, judges and court officials to scramble and reschedule trials in pending cases with jailed defendants."

That is not the case in Vanderburgh County, according to Corbin's story, that begins:

An Indiana Supreme Court ruling that requires jailed defendants to be brought to trial within six months or be released is causing courts in some parts of Indiana to reshuffle trials to squeeze them in under the deadline. The ruling has had little impact locally, however, because criminal trials in Vanderburgh County are routinely scheduled long before the six-month cutoff.

Local legal professionals could not remember any recent cases in Vanderburgh County where a defendant had to be set free after languishing in jail for too long, awaiting trial.

Ind. Law - Real estate filings to get more complex January 1, 2006

Effective Jan. 1, 2006 all documents filed for recording at Indiana courthouses must be accompanied by a new form, called County Form 170. The form issued by the State Board of Accounts is designed to assure that no Social Security numbers are made a part of the county records.

Required by Public Law 91-2005 (now IC 36-2-7.5), the preparer of each recorded document must affirm under penalty of perjury the review of the document to identify and redact all Social Security Numbers, except those required by other law. The declaration form is to be attached to the recorded document. No recorder is to accept any document for recording without the declaration, according to IC 36-2-7.5-6. The State Board of Accounts is charged with the creation of the form, and the official form must be used, according to the statute. The form is circulating, but an official copy is not found on the SBA website

County Recorders are now alerting lawyers to the new requirements, which has led to a flurry of discussion on the ISBA email-list maintained by the Real Property, Probate and Trust section. Questions about the ability of lawyers to deliver deeds to title companies, or to clients and release the instruments from control have been raised. Other issues of the basis for the law and the possibility of repeal have also been mentioned.

Environment - Residents oppose hog farm: It's near an area used by sandhill cranes

"Residents oppose hog farm: It's near an area used by sandhill cranes" is the headline to this story today in the South Bend Tribune. Earlier ILB entries were headlined "Concern about proposed Jasper County CAFO bordering the Jasper/Pulaski Fish and Wildlife Area;" the most recent was 12/7/05.

From today's Tribune:

WHEATFIELD, Ind. (AP) -- Residents near a wildlife area where thousands of sandhill cranes gather each fall want the state to halt the nearby construction of a 2,500-sow farm.

A coalition of residents fear Belstra Milling Co.'s hog farm just north of the refuge will lead to air, water and land contamination and threaten the sandhill cranes that pass through northwestern Indiana while migrating south.

"Why did they pick here?" said Roy Reese, a rural Wheatfield resident opposed to the farm.

Coalition members who earlier collected the signatures of about 1,000 residents opposed to the project have appealed the Indiana Department of Environmental Management's approval of the DeMotte company's permit for the site.

Each fall, tens of thousands of the once-endangered cranes migrate through the Jasper-Pulaski Fish and Wildlife Area in an annual spectacle that attracts about 30,000 birdwatchers.

Belstra, whose project was approved last month by Jasper County's Board of Zoning Appeals, already has begun work on the farm.

The 8,000-acre wildlife area is an internationally recognized "Important Bird Area" because it supports a significant proportion of the sandhill's total population. The species, once near extinction, is well on its way to a full recovery. * * *

Although residents have appealed the farm's solid waste permit, their petition is incomplete, said Deborah Miles, an administrative assistant in IDEM's Office of Environmental Adjudication.

The residents have until Thursday to provide additional material requested by the office.

Malcolm DeKryger, Belstra's vice president, said the residents' fears about the farm's effect on the cranes were unfounded. Once the farm is in operation, he said, its manure will be injected several inches under the ground where the cranes congregate. * * *

DNR spokesman Michael Ellis said a letter that Glen Salmon, the DNR's director of Fish and Wildlife, sent to IDEM declares that the wildlife area's wetlands "are major use areas for the sandhill crane and other water birds in both the spring and fall migrations."

Although the DNR believes the hog farm will not have a detrimental effect on the wildlife area, Ellis said, "in case anything would happen, our concerns are on the record."

The case of the Knightstown Banner, LLC v. Town of Knightstown, et al. was written up here on Nov. 11th, under the heading "Question of making town's private settlement public argued before Court of Appeals." Today, the Court of Appeals has reversed the trial court and ruled in favor of the Knightstown Banner that the terms of the settlement at issue are a public record.

The Indianapolis Star already has posted a brief blurb on this ruling, here.

Judge Riley states the issue as:

Whether documents created by the attorney appointed by Knightstown’s reciprocal insurer, memorializing the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, are public records under the Indiana Access to Public Records Act (APRA).

More from the opinion:

The overarching question of whether the settlement agreement drafted by an attorney retained by a public agency’s insurance company can be considered a public record, and therefore be subject to the requirements of APRA, presents us with an issue of first impression in Indiana and compels us to interpret the relevant provisions of the statute. * * *

[M]indful of the APRA’s purpose of openness, we do not allow a public authority to thwart disclosure required by APRA by having an attorney or an insurer’s attorney prepare every writing that the public authority wishes to keep confidential. Accordingly, we reverse the trial court’s judgment and remand this case with instructions for the trial court to enter an Order mandating Knightstown to receive the settlement agreement from Retained Town Counsel and to deliver to the Banner a copy of its settlement agreement with Steinwachs.

CONCLUSION. Based on the foregoing, we find that the agreement created by the attorney appointed by Knightstown’s insurance company, memorializing the terms and conditions of a settlement of a civil rights lawsuit brought by a former employee against Knightstown, is a public record under APRA. We reverse and remand to the trial court with instructions to enter an Order mandating Knightstown to receive the settlement agreement from Retained Town Counsel and to deliver to the Banner a copy of its settlement agreement with Steinwachs. Reversed and remanded with instructions.

Whether a policyholder of a first-layer liability insurance policy is entitled to payment of defense costs as they are incurred when the insurance policy does not contain a duty to defend clause or express language authorizing a delay in payment of those costs until determination of whether the underlying claims are covered. * * *

In sum, Cinergy’s arguments are merely attempts to identify imperfections in the insurance policy that simply do not rise to the level of ambiguity. Accordingly, mindful of our standard of review and in light of the evidence before us, we find that the insurance policy is clear and unambiguous, awarding defense costs upon the determination that the Underlying Lawsuit is covered by the policy.

CONCLUSION Based on the foregoing, we find that the unambiguous language of the policy only entitles Cinergy to payment of defense costs upon determination of coverage of the Underlying Lawsuit. Affirmed.

Real and Lise Garneau (“the Garneaus”) appeal from the Carroll Circuit Court’s grant of summary judgment in favor of Charles E. Bush, Jr., M.D. (“Dr. Bush”) on their claim for medical malpractice. They raise the following issue: whether the trial court erred when it found the Garneaus’ claim was barred by the statute of limitations. Concluding that the trial court improperly granted summary judgment in favor of Dr. Bush, we reverse and remand for proceedings consistent with this opinion. * * *

Conclusion The Garneaus possessed information that would have led a reasonable person to discover the alleged malpractice of Dr. Bush’s installation of an obsolete prosthesis within the applicable two-year statute of limitations. The doctrine of fraudulent concealment does not save the Garneaus’ complaint from being time-barred. However, the designated evidence creates a genuine issue of material fact as to whether the doctrine of continuing wrong tolls the statute of limitations. In addition, the designated evidence creates a genuine issue of material fact as to whether Dr. Bush’s treatment of Lise with pain medication and without revision or referral for corrective surgery after September 17, constituted a separate act of negligence. Therefore, the trial court erred in granting summary judgment in favor of Dr. Bush. Reversed and remanded for proceedings consistent with this opinion.

George Kopetsky appeals the trial court’s determination that he holds not an express access easement but only a prescriptive access easement limited to agricultural and recreational purposes over a portion of the property owned by Jeffrey and Lisa Bennett. Finding that Kopetsky holds an express easement permitting access to his property for any purpose, we reverse.

As restated, the dispositive issue on appeal is: Did the trial court err by granting summary judgment where the insurance policy provisions at issue are ambiguous as to the event that would trigger commencement of the limitation period for the Clevengers to bring their underinsured motorist (UIM) claim? We reverse and remand for further proceedings.

Todd Estes Jones (“Jones”) admitted a probation violation in Madison Superior Court. He appeals his probation revocation, raising one issue: whether the trial court abused its discretion by ordering him to serve thirty years of his previously suspended sentence. Concluding that the trial court properly sentenced Jones, we affirm.

Based on the evidence before us, we conclude that the probate court erred in dismissing the Trustee’s Motion to Dismiss for Failure to State a Claim. See City of South Bend, 821 N.E.2d at 9. As we established above, Geraldine’s claim is barred because she failed to file her contingent claim within nine months of John’s death. See I.C. §§ 29-1-14-1, 29-1-47-7. Consequently, we reverse the trial court’s decision.

Ind. Decisions - Final word on Elkhart Judge Pfaff

On Nov. 21, 2005, the Supreme Court posted In the Matter of L. Benjamin Pfaff , an order labeled "Published Order Accepting Resignation." See ILB entry here.

In the order, the Court indicated that they would later issue a published opinion to document the circumstances surrounding Respondent’s resignation. That is today's per curiam, 7-page ruling, available here.

An Indiana jury convicted
Obadyah Ben-Yisrayl, formerly known as Christopher
Peterson, of murdering Harchand Dhaliwal and Marie
Meitzler. After the Indiana Supreme Court affirmed Ben-
Yisrayl’s conviction and sentence on direct appeal and
denied Ben-Yisrayl collateral relief, the district court
granted his petition for writ of habeas corpus. On appeal,
we find the Indiana Supreme Court’s determination that
the prosecutor did not violate Ben-Yisrayl’s Fifth Amendment
rights during his closing argument to be an unreasonable
determination in light of the evidence. In addition, we
find the state court’s determination of the constitutional error in Ben-Yisrayl’s case an unreasonable application of
clearly-established, federal law. We, therefore, affirm the
judgment of the district court. * * *

Conclusion. error in Ben-Yisrayl’s case an unreasonable application of
clearly-established, federal law. We, therefore, affirm the
judgment of the district court.

[Judge Manion concurs with a separate opinion beginning on p. 17.]

The 7th Circuit also today affirmed two Illinois cases: a criminal matter and a case relating to whether "the members of the operating crew of a
gambling boat that is most of the time moored rather than
sailing are nevertheless 'seamen' within the meaning of the
provision of the Fair Labor Standards Act."

"Miller resigns as secretary of commerce to return to business" is the headline to this Louisville Courier Journalstory today by Lesley Stedman Weidenbener. Niki Kelly of the Fort Wayne Journal Gazette has this story, titled "Bradley exec quits state post: Miller cutting short her stint as commerce chief." A quote:

Miller’s departure is the fourth from Daniels’ inner circle since he took office in January, but she is the first member of his Cabinet to leave. The Cabinet consists of 18 key office and agency heads.

Others who have left were all from within the governor’s office, including Deputy Chief of Staff Ellen Whitt, General Counsel Steve Schultz and Legislative Director Jennifer Thuma – some in recent weeks.

Daniels conceded it will be hard to keep the “all-stars” he recruited from the business world in state government for very long.

“I’ve had a very big concern from the beginning to try to maintain the talent level,” he said. “Because the vast majority of them are non-politicians and did come from private life, there is a constant risk that some will be lured back or will have to go back,” he said.

He noted that succession management is a topic of every Cabinet meeting, and he has charged every Cabinet officer with developing a list of at least three people who could step into their job. At least one of those must be from outside state government.

“It will be very, very hard to maintain the same level of talent, fresh thinking and ideals,” Daniels said.

Environment - Great Lakes overhaul plan approved; diversion plan also up for signature

Although he pledged no funding for a new Great Lakes restoration plan, President Bush's environment chief and regional leaders -- one of them, Mayor Daley, insisting "This is not a publicity stunt" -- signed off on the $20 billion blueprint Monday in celebratory fashion.

Even environmental groups, which have been bashing Bush for his lack of financial support to protect and clean up the lakes, put an optimistic face on the event.

All agreed that getting federal, state, local and American Indian tribal leaders, in addition to advocacy groups, to approve a plan in just one year was a signal achievement.

And all agreed that the real work -- finding money to implement the 15-year agreement -- is just beginning.

CHICAGO | Local, state and federal leaders on Monday unveiled their $20 billion, 15-year strategy for cleaning up the Great Lakes, touting the partnerships involved across jurisdictional boundaries.

"The needs are enormous here in the Great Lakes," U.S. Environmental Protection Agency Administrator Stephen Johnson said. "We have a great blueprint now." * * *

The plan's success relies on sustained funding from Congress and the states and cities of the Great Lakes basin.

The group also called for additional federal legislation to prevent invasive species from entering the lakes and the reduction of the discharge of mercury, PCBs, dioxin, pesticides and other toxins into the lakes.

"The name of the game here is action, action, action," said Cameron Davis, executive director of Chicago's Alliance for the Great Lakes. "The public is tired of planning."

"Great Lake catch a break" is the title of the Gary Post-Tribunestory that reports, in a story by Tim Zom:

A historic agreement could restore the Great Lakes’ environment and protect it from future abuses, environmentalists say. Its funding may depend on public pressure, they said.

Representatives from the federal government, along with states, cities and tribes around the lakes, signed the Great Lakes Regional Collaboration Strategy in a ceremony Monday at Chicago’s Shedd Aquarium.

Stephen Johnson, administrator of the U.S. Environmental Protection Agency, called it “an excellent blueprint” for action.

The document outlines goals and programs in eight categories, such as cleaning up toxic sediments, keeping out exotic species and upgrading sewer systems.

“This is the first time in history that the Great Lakes have had a comprehensive plan to restore and protect them,” Andy Buchsbaum, director of the National Wildlife Federation’s Great Lakes office, said. “It’s the first time in history that all levels of government have united behind one plan, and it couldn’t be in enough time.”

Environmental groups said the strategy calls for spending $20 billion over 15 years.

Two months ago, some environmentalists became alarmed when an EPA memo indicated there would be no new federal money for Great Lakes programs because of other federal priorities.

Cameron Davis, executive director of Alliance for the Great Lakes, said Monday that governors and mayors have exerted “enormous pressure” since then to ease the funding restriction.

And even if the Bush administration doesn’t propose more money for the Great Lakes in the next budget, environmentalists believe representatives from Great Lakes states will try to appropriate the money. * * *

The largest single funding element in the plan is $13.75 million to upgrade sewer systems, to prevent pollution from fouling Great Lakes beaches and drinking water.

Other major spending proposals include $288 million a year to restore wetlands, coasts and native fish species in the lakes and $150 million a year to clean up contaminated sediments — such as the tons of polluted mud at the bottom of Northwest Indiana’s Grand Calumet River and the Indiana Harbor and Ship Canal.

The Chicago Tribune reports today on the diversion plan. "States OK stopper for the Great Lakes: Pact would outlaw increased diversion" is the headline to this story; some quotes:

The governors of the Great Lakes states and Ontario officials have agreed to all but ban pumping water out of the Great Lakes basin, home to a fifth of the world's fresh water, a resource expected to grow more precious in coming decades.

The pact, to be signed Tuesday in Milwaukee, would ban new or increased diversions of water from the Great Lakes and St. Lawrence River to other watersheds outside that drainage area, conference officials say.

The agreement formalizes how water from the lakes can be used while also requiring states and provinces to implement water-conservation programs and other steps.

The diversion issue has been at the forefront of Great Lakes conservation. It has made battlegrounds out of suburban areas on the cusp of the lakes' drainage area, where they have sought to import Great Lakes water just a few hundred yards for municipal use.

"These agreements will secure both environmental and economic stability in the region by protecting our most precious natural resource," Ohio Gov. Bob Taft, co-chairman of the Council of Great Lakes Governors, said Monday.

The international water-use pact, a finalized version of the Annex 2001 agreement, now needs to be ratified by state legislatures, Canadian provincial authorities and ultimately the U.S. Congress.

It seeks to regulate how much water is removed from the 288,000-square-mile Great Lakes drainage basin, an area containing the largest body of fresh water in the world.

Under the agreement, municipalities would be eligible to seek exemptions if they are in counties straddling the edge of the Great Lakes basin or are straddling the basin themselves, said David Naftzger, executive director of the Council of Great Lakes Governors.

Among the communities whose counties are split by the basin are Lowell, Ind., and Milwaukee suburb Waukesha, Wis. Communities such as New Berlin, Wis., and Ft. Wayne, Ind., are directly bisected by the basin.

In Illinois, where the largest diversion of Great Lakes water occurs, the basin's rim follows a rise in the ground closely hugging the Lake Michigan shore from the Wisconsin border to Northwest Indiana.

What's known as the Chicago diversion, which supplies water to DuPage County and other municipalities just outside the lake's basin, is grandfathered in and protected by Supreme Court rulings a century old.

Danikolas, who is from St. John, died Saturday of congestive heart failure while on vacation in Key West, Fla., his attorney, Andrew Giorgi, said Monday.

Danikolas' death came just three days after he was suspended for 60 days without pay by the state Supreme Court for firing a court employee in retaliation over her testimony in another misconduct case against him.

[Updated 12/13/05] Stories today on the death of longtime Lake County Judge James Danikolas, from the Gary Post-Tribune ("Controversy aside, Danikolas remembered as caring man") and from the Munster (NW Indiana) Times ("Judge Danikolas, 69, dies: Colleagues mourn 'great jurist,' despite recent difficulties"). The Times story includes:

Senior Civil Division Judge Gerald Svetanoff said Danikolas' magistrates Maria Luz Corona and Nanette Raduenz will conduct court business until the end of the year. Former Judge James Richards will help run the court next year until Gov. Mitch Daniels names a permanent replacement.

Law - Texas redistricting to be reveiwed by Supreme Court

NPR's Nina Totenberg had an excellent piece this afternoon on the Supreme Court's Texas redistricting review -- a story that pulls together many elements, including the Democrat Texas legislators fleeing to Louisiana several years back in an effort to prevent the Republicans from having the quorum they needed to pass the mid-decade redistricting that would result in a six-seat gain, giving Tom DeLay the majority he needed.

All Things Considered, December 12, 2005 · The Supreme Court has agreed to review the constitutionality of a map for Texas congressional districts that opponents say was improperly manipulated. The map, engineered by Rep. Tom Delay (R-TX), helped Republicans increase their hold on the Texas delegation.

The ILB has had a slew of entries on redistricting -- all accessible via the search box.

Ind. Gov't. - One state law school needs fixing up while others cite wishes for a third state law school

The Indiana Daily Studentreports today that the IU Board of Trustees met Friday and, inter alia, voted to rehab the Bloomington Law School:

Law School Renovations

During the meeting. the board also approved a $1.8 million renovation of the law library and the first and second floors of the law school to make the space more functional.

Dean of the School of Law Lauren Robel said the renovations will make room for more classes.

"We are desperately short of classroom space," she said.

In addition. the school will try to upgrade its infrastructure to make it more accessible to bring electronics into classrooms and transfer many of the law journals into digital format to free up space, said John Applegate, law school executive associate dean for academic affairs.

"It appears that over time there is now a greater need in different areas than before," said trustee William Cast. "Virtual cyberspace is now much more of a priority."

Robel said the renovations would start this summer and continue for 18 months.

Meanwhile, there is talk, in Terre Haute, of adding a third state law school, according to this AP story:

TERRE HAUTE, Ind. -- Indiana State University is considering creating a law school, but the proposal is in its early stages. ISU has completed a preliminary review of the idea, and will now work on a more detailed feasibility study, which should be completed by June, said university president Lloyd Benjamin. "The concept appears to have a lot of merit," he said. "At the same time, it has a lot of questions."

If Indiana State establishes a law school, it would be the third public law school in the state, along with Indiana University School of Law at Bloomington and IU School of Law at Indianapolis. Two private universities -- Valparaiso University and the University of Notre Dame -- also have law schools.

If ISU officials decide they want to establish a law school, the proposal would have to be approved by the Indiana Commission for Higher Education. Stan Jones, state commissioner for higher education, said he knows little about the idea, but had concerns about whether there was demand for another public law school. "I think we need to be certain we really have a need in the state for another law school before we would walk down that path," Jones said. "I've not been aware that we need more lawyers in the state."

Pat Miller was one of Mitch Daniels first and foremost governmental appointees. Here is a quote from the Fort Wayne Journal Gazette in a May 17, 2004ILB entry:

The co-founder and president of Vera Bradley Designs has been tapped to market economic development for Indiana in a possible Mitch Daniels administration. * * * Daniels, the former White House budget director, won the Republican gubernatorial primary last week and will face Democratic Gov. Joe Kernan in the November general election. Daniels said Wednesday that if he's elected he will create a new Cabinet position, secretary of commerce, and name Vera Bradley co-owner Patricia Miller to the post.

Miller would be the highest-ranking person in Daniels' cabinet, he said, and the "chief operating officer of our economic development initiatives." "She can help me sell Indiana to business leaders across the country," Daniels said. "She can help existing companies to grow and inspire the formation of more new ventures."

"Like Pat Miller, Chuck Schalliol, and others to come, [Debra Minott, new Personnel Director] is a top talent who has never before served in public life," Daniels said in a written statement. "From the beginning we�ve said that we would bring a new crew with unprecedented abilities and a fresh outlook, and you are seeing that start to take shape."

Here is a quote from a Jim Shella report on the WISH TV 8 news site, reported in the ILB on Dec. 6, 2004:

Mitch Daniels is learning, as if he didn't already know it, that criticism is hard to avoid. * * *

The criticism has two major themes. First, that while Daniels has lured business professionals with sterling credentials to government service, state government is not a business. The critics say that government experience is important. * * *

The other criticism is that the Daniels appointments represent a lack of diversity and represent only the business elite from Central Indiana. In fact, Daniels has appointed just one woman, Deputy Chief of Staff Ellen Whitt, since Election Day. It is worth pointing out, however, that he chose Lieutenant Governor-elect Becky Skillman and Secretary of Commerce designee Pat Miller during the campaign. By my count, that makes four women out of ten appointees. Nevertheless, minority representation is still lacking.

"You're hired . . . fired, 4 workers hear: Ex-Commerce managers given pink slips say they had job offers from Daniels' staff rescinded." That is the headline to a story today in the business section of the Indianapolis Star by J.K. Wall.

My sub-headline would have been: "Commerce Secretary Pat Miller shows a lot of class in an unfortunate situation."

Finally, for now, here is an April 11, 2005ILB entry quoting from the Indianapolis Star's J.K. Wall's story of that date on the governor's private-sector approach to government and his appointments to head state agencies. A quote from Wall's story:

What Daniels' appointees haven't taken to are the regulations, the politics and the slower pace of government. Indianapolis entrepreneur Mickey Maurer, now president of the Indiana Economic Development Corp., said he has had to adjust to going from no boss to many bosses, including Secretary of Commerce Pat Miller. "In my professional, former life, I would say, 'OK, let's do it,' " he said. "Now, I say, 'What's the governor's office think about it?'"

[More] Here, thanks to TDW, is the Governor's press release on the Pat Miller resignation, which the ILB has converted to PDF for easier access.

Ind. Courts - Supreme Court posts online coloring book

Seriously. You can color the State Seal, the State Flag, stained glass windows from the Statehouse, and more, at this Supreme Court site. Crayons are included. (Note: This does not seem to work with the Firefox browser, but does work with MS Explorer.)

And there is more via the same link, an Indiana Supreme Court Word Search, and an Indiana Supreme Court Crossword.

Jose Ortiz pled guilty to one
count of distributing marijuana and two counts of distributing
cocaine. At sentencing, the district court found that
Ortiz’s relevant conduct involved 100 kilograms of cocaine
and sentenced him to 240 months imprisonment.
Ortiz argues that the government witness’s testimony
was inconsistent and therefore unreliable. Although we find
aspects of that testimony troubling, we decline to find it
incredible as a matter of law. Ortiz also appeals
his sentence on the grounds that the district court improperly
attributed to him quantities of cocaine not part
of the offense of conviction. We agree and find that the additional cocaine that the district court attributed to Ortiz
was not part of the same common scheme or plan as the
crime to which Ortiz pled guilty, and is thus not relevant
conduct. As such, we vacate Ortiz’s sentence and remand for
resentencing. In light of this remand, we need not address
Ortiz’s arguments under United States v. Booker, 125 S. Ct.
738 (2005).

Xhevgjet Kllokoqi, a citizen of
the Kosovo region of the Federal Republic of Yugoslavia and
an ethnic Albanian, appeals a final order of the Board of
Immigration Appeals (BIA) affirming an immigration
judge’s (IJ) denial of his application for political asylum and
withholding of removal. Because the IJ discredited Kllokoqi
without substantial evidence and failed to consider all of Kllokoqi’s persecution arguments, we vacate and remand
for further proceedings. * * *

While the final choice of a presiding judge remains always
with the BIA, we strongly encourage the BIA to assign
Kllokoqi’s case to a different judge on remand in order to
avoid any perception of lingering bias.

ISSUE The Stuffs raise one issue on appeal, which we restate as follows: Whether the trial court properly exercised its discretion by ordering Kelly to undergo an independent neuropsychological examination pursuant to Indiana Trial Rule 35 when the Stuffs’ personal injury claim only alleges general emotional distress normally associated with a physical injury and without asserting any specific mental injury. * * *

Specifically, referencing the requirements of T.R. 35, the Stuffs assert that Simmons failed to affirmatively show that Kelly has put her mental condition in controversy and that he has good cause for requesting Kelly to undergo neuropsychological testing. * * *

The parties did not proffer, nor did our research discover any Indiana cases interpreting the “in controversy” and “good cause” language of T.R. 35. As such, the question presented by the Stuffs is a matter of first impression. Because Indiana’s Trial Rule 35 largely duplicates the language of its equivalent rule of the Federal Rules of Civil Procedure, the federal courts’ construction of Federal Rule 35 is helpful in our analysis of T.R. 35. * * *

Based on the evidence before us, we conclude that a mere routine allegation of damages for emotional distress does not place the party’s mental condition in controversy. The plaintiff must assert or defendant must show a mental injury that exceeds the common emotional reaction to an injury or loss. To permit Simmons to compel a mental examination in the instant case because the Stuffs make a garden-variety claim of damages for emotional distress would open the door to involuntary mental examinations in virtually every soft tissue injury case. We do not believe T.R. 35 was intended to authorize sweeping probes into a plaintiff’s psychological past merely because she has been injured and makes a claim for emotional distress damages without more. Accordingly, we find that the trial court’s decision ordering Kelly to submit to neuropsychological testing to be against the facts and circumstances of the case. * * * Thus, the trial court abused its discretion and therefore, we reverse the trial court’s decision. * * *

Even though we acknowledge that our inquiry may end due to Simmons’ failure to put Kelly’s mental condition in controversy, however, because of the issue’s novelty we will address the good cause requirement under T.R. 35. * * *

Furthermore, the Texas Supreme Court in Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988), reh’g denied, appears to have distilled the good cause requirement into three elements: (1) an examination is relevant to issues that are genuinely in controversy in the case; (2) a party must show a reasonable nexus between the condition in controversy and the examination sought; and (3) a movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination.

CONCLUSION Based on the foregoing, we find that the trial court abused its discretion by ordering Kelly to undergo an independent neuropsychological examination pursuant to Indiana Trial Rule 35 when the Stuffs’ personal injury claim only alleges general emotional distress normally associated with a physical injury and without asserting any specific mental injury. Reversed and remanded for further proceedings.

Ryan Specht appeals the post-conviction court’s partial denial of his petition for post-conviction relief. Specifically, Specht contends that the post-conviction court erred by finding that his counsel were not ineffective either at trial or on appeal in his prosecution on charges of murder, attempted murder, and robbery.1 Finding that Specht’s counsel were ineffective at the trial level regarding the attempted murder charge, we reverse that conviction. Because his counsel were otherwise not ineffective, we affirm the post-conviction court in all other respects. * * *

Specht’s counsel were ineffective at trial in failing to object to the jury instructions given on accomplice liability for attempted murder and in failing to tender a proper instruction. We therefore reverse Specht’s conviction for attempted murder. In all other respects we find that Specht’s counsel were not ineffective, and we affirm the post-conviction court’s partial denial of post-conviction relief. Affirmed in part, reversed in part.

Appellant-plaintiff M.K. Plastics Corporation (M.K. Plastics) appeals from the trial court’s denial of its motion for preliminary injunction. Specifically, M.K. Plastics contends that the trial court erred in concluding that M.K. Plastics does not have protectible trade secrets under the Indiana Uniform Trade Secrets Act1 (IUTSA) and that Rossi’s actions did not constitute misappropriation of trade secrets under the IUTSA. Concluding that the trial court properly denied the motion for preliminary injunction, we affirm.

Lake Superior Court Civil Division Judge James Danikolas was given a 60-day suspension without pay last week for violating the state's Code of Judicial Conduct.

The Indiana Supreme Court ruled in a 4-1 decision last Tuesday that Danikolas was abusing his power when he fired family court magistrate Kris Costa-Sakelaris over a personal vendetta.

Danikolas was appointed to the bench in 1977.

The dispute between Danikolas and Sakelaris began four years ago when Sakelaris jailed a man for failing to pay child support and disclose his assets. Danikolas freed the man five days later without a hearing or proper notice.

Sakelaris refused to say she was wrong to jail the father, and Danikolas fired her less than five months later, in May 2003, saying she was doing her job poorly.

Meaning, of course, she was not covering up for her boss. She was right to stand up to Danikolas.

In October 2004, a survey of Lake County attorneys found 60 percent recommended voters kick Danikolas off the bench. He was retained.

The Indiana Commission on Judicial Qualifications recommended earlier this year that Danikolas be removed from the bench.

But the high court's decision was to merely dock Danikolas two months of pay and make him reimburse the state $10,894 for the 21-month investigation of his misconduct.

That hardly seems fitting punishment for improperly firing a family court magistrate over a personal vendetta.

The ruling in In the Matter of the Honorable James Danikolas, Judge of the Lake Superior Court, Civil Division 3 is summarized in this 12/6/05 ILB entry (2nd item).

Environment - Two more Indiana papers pick up corn-fired boiler story

Two more papers, the Louisville Courier Journal and the Evansville Courier& Press have picked up (here and here) the syndicated corn-fired outdoor boiler story the ILB criticized in this entry this weekend: "Pros and cons of wood-fired (or corn-fired) outdoor boilers."
Make that three.Here it also is in the Sunday Fort Wayne Journal Gazette. Whereas the South Bend Tribunestory on wood-fired boilers ("Wood-burning outdoor boiler catching heat: Citing health, environmental concerns, neighbors object to resident's heat source") seems to have received no further circulation.

The awning outside the Goshen, Ind., office read "Ludy Diaz, Notary Public." That translates into "notario publico" in Spanish, the language spoken by many of the self-described immigration counselor's customers.

To the people of Mexico and other Latin American countries, notario publico means highly qualified lawyer. But Diaz, whose legal training consists mainly of attending immigration law seminars, did too little to set the record straight, according to the Indiana Supreme Court.

Last week, in a decision expected to have implications for other nonlawyers who may be exploiting cultural ambiguities, the court barred Diaz from the unauthorized practice of law. The court found that her use of the notario publico phrase in advertising misled trusting immigrants who paid her hundreds of dollars to help them. And by straying outside her competence, critics say, she put people's legal status at risk.

In one case, Diaz failed to effectively advise a Hispanic man with immigration problems seeking to stay in the country, said Tom Ruge, lead counsel for the Indiana State Bar Association, which brought the original complaint against Diaz. The man was deported, Ruge said. * * *

Diaz denies deliberately misleading anyone. If someone refers to her as an attorney, she corrects them. Her attorney, Patrick F. O'Leary, said she never held herself out to be an attorney and, in fact, commonly refers clients to lawyers.

The Indiana Supreme Court, however, said Diaz used the notario publico title to promote her business to Hispanics and did not do enough to let her customers know she is not a lawyer.

The court noted that Diaz sometimes ventured beyond immigration law. She also drafted contracts, a pleading and at least one will.

"In many cases her understanding of the underlying law was incomplete, her advice or the documents she prepared were faulty, and her clients suffered," the court ruling said.

Rafael Sanchez, chairman of the Indiana State Bar Association's Latino Affairs Committee, said the key now is to get the word out to people in the Hispanic community.

He says some nonattorney notaries who tout themselves as notario publicos may do so innocently, unaware that it is misleading. But those people, he said, must be made to know this: "You're taking advantage of the customer," he said. "You're dealing with people's lives."

Law - Plagiarism: A serious problem with students at all levels of schooling

"Writing a paper? Make it original" is the headline to a story today by Staci Hupp on the front page of the Indianapolis Star. The printed version of the story starts with this:

pla-gia-rize -- vt., vi. 1: to take (ideas, writings, etc.) from (another) and pass them off as one's own
Websters's New World College Dictionary

The story explains how teachers are using software and the internet to catch cheating students. Some quotes:

Computers open door. About 40 percent of students admitted to "cut-and-paste" plagiarism, according to a Center for Academic Integrity study this year of 50,000 college students nationwide. That's up from 10 percent six years ago.

Maybe it's because cheating keeps getting easier. So-called paper mills such as www.essay chief.com sell term papers for as little as $14 per page. Students also have access to countless academic journals, news articles and other materials with one point and click.

A side-bar gives examples of plagiarism:

• Paraphrasing someone else's words too closely.

• Copying from another person's paper.

• Buying, stealing or downloading a paper from a Web site and claiming it as your own.

• Turning in your big sister's paper from last year.

• Using someone else's ideas or materials without acknowledging them or without crediting the other person.

• Cutting and pasting information from a Web site without saying where it came from.

Plagiarism by law school students is a particularly serious offense, as pointed in this brochure used in a number of schools, titled "Law Student Plagiarism: You Can't Afford It!" A very useful guide to the topic is a 17-page paper, "Plagiarism: A Workshop for Law Students," by Matthew C. Mirow. Some quotes:

Consequences of Plagiarism in Law School.

Law schools take plagiarism extremely seriously. An investigation of student plagiarism is one of the few things that professors feel they are morally required to pursue, even though it means a lot of time, effort, and, if proven, sorrow. Depending on the particular law school and gravity of the conduct, plagiarism might lead to minor punishments, such as failure of the particular course, to severe castigation, such as expulsion or dismissal from law school.(19)

Investigations for plagiarism in law school often reappear when candidates seek bar admission. Cases illustrate that students who have committed plagiarism in law school have been prohibited from taking the bar exam and from practicing law. For example, a Delaware Supreme Court decision (20) stemmed from a petitioner's desire to avoid disclosure of the extraordinary facts surrounding his failed attempt to cover up a charge of plagiarism in law school. Trying to hide his plagiarism, the student apparently forged statements and fabricated testimony. His false materials included the signature of a District of Columbia notary public, several letters from nonexistent U.S. Army officers, and letters that forged the seal and name of the C.I.A. The court upheld the Board of Examiners' determination that the petitioner failed to show that he was a person of good moral character and fit to practice law.

On one occasion, a single act of plagiarism was not sufficient to bar a candidate from admission forever. In 1988, a divided Minnesota Supreme Court (21) admitted a petitioner who confessed to plagiarizing substantial portions of a research paper on products liability. The Minnesota court was swayed by the petitioner's remorse and recounted a painful scrutiny of the petitioner's work this way:

At the hearing, counsel for the Board dissected the paper line by line and phrase by phrase. Again and again, petitioner admitted responsibility as he initialled each plagiarized passage. Petitioner also attempted to explain the incident to the Board at the hearing. He cited his wife's health, computer problems, stress in his family.(22)

Even though the petitioner was admitted to the bar, all would agree that it is best to avoid any possibility of plagiarism while in law school. Furthermore, problems associated with plagiarism do not disappear once you leave law school. As long as you are communicating with others in writing, something attorneys do all the time, you must be concerned with plagiarism. Thus, plagiarism after one passes the bar is also a possibility.*

A fairly recent addition to the law student plagiarism equation is the fact that many law students now have blogs, or contribute to blogs. What should be the ramifications if a law student's blog, not connected to the school, is found to include numerous incidents of plagiarim? Is this within the purview of the law school? An interesting hypothetical.
_____
*The paper continues at page 9 with a discussion of plagiarism in legal practice.

Last Thursday the Supreme Court heard oral arguments in the case of Penn Harris Madison (P-H-M) School Corp. v. Howard. The oral argument is available for listening here and also includes this summary:

Summary: Pursuant to a jury verdict, the St. Joseph Superior Court entered a judgment for Howard on her claim that the School Corporation’s negligence resulted in injury to her seventeen-year-old son. The Court of Appeals reversed after concluding the trial court erroneously instructed the jury regarding the standard of care to be exercised by a minor and regarding the last-clear-chance doctrine. Penn Harris Madison School Corp. v. Howard, 832 N.E.2d 1013 (Ind. Ct. App. 2005), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal.

Attorney for Penn Harris
Shannon L. Robinson
Bloomington, IN

Attorney for Howard
Douglas D. Small
South Bend, IN

The South Bend Tribune yesterday had good coverage of the oral arguments, by reporter Martin DeAgostino. Some quotes from the start of the report:

INDIANAPOLIS -- Peter Pan flew in the original book, the Broadway musical and in movies.

But Peter Pan fell 30 feet during an amateur production at Elsie Rogers Elementary School five years ago, leaving 17-year-old David Howard with serious injuries and $100,000 in medical bills.

Now the Indiana Supreme Court will decide if a $200,000 jury award to Howard should stand, or if the Penn-Harris-Madison School Corp. is right to claim that Howard's own negligence should bar the award.

The Indiana Court of Appeals ruled for the school system in August, citing improper jury instructions. The Supreme Court took the case on appeal to clarify some uncertainties in cases that involve a defense of contributory negligence, according to lawyers familiar with the case.

As such, the court's decision directly bears on another pending case against P-H-M, involving a student who was molested by her fourth-grade teacher. In that case, the school corporation claims not that the girl contributed to the crime, but that she should have reported it long before she did.

The school's defense is based on a legal theory called standard of care, which also applies in Howard's case.

Essentially, P-H-M says Howard should have exercised the same degree of care that an adult would have exercised when he attached a harness to a cable to simulate flight across a stage.

But Howard's lawyer says that's too strict a standard, even though Indiana trial rules have long applied the adult standard of care to minors above the age of 14. * * *

The hearing involved a brief history of Indiana's standard of care rule, often called the "rule of sevens." Rooted in biblical injunctions, the rule assigns greater or lesser responsibility to children depending on if they are younger than 7, younger than 14 or older than 14.

Sunday, December 11, 2005

"Judge blames conspiracy, not his behavior, for problems" is the headline to a story today in the St. Louis Post-Dispatch. Some quotes:

Madison County Circuit Judge George Moran Jr. claims that trial lawyers who have lost in his courtroom are conspiring with the county's Democratic party to force him off the bench.

Moran said someone from the party told him last month of a plan to scuttle his bid for retention to a six-year term in next year's election.

Moran said the party member, whom he refused to identify, said the plan would involve publicly accusing the judge of shirking work to take Spanish classes and belittling him over his profile on a dating Web site. On the site, Moran is pictured in judicial robes and as indicating a preference for "skinny dipping" and "erotica." * * *

As a son of a former state appellate judge and personal injury attorney, Moran's judicial career has followed the classic Madison County trajectory that favors Democratic trial lawyers and their sons and daughters.

Now, the system that created him has apparently turned on him.

Moran, of Pontoon Beach, declined to identify the people who he says are involved in the campaign against him, other than to say they were "the big contributors to the Democratic party - the trial lawyers."

Moran said powerful plaintiffs firms were seeking his removal because he had dismissed and transferred some of their class-action suits.

The headline: "Toxic risk on your plate: Seafood for sale in area stores is contaminated with mercury, Tribune testing shows. Government and industry fail to protect consumers, even as Americans buy more fish than ever." Some quotes from the beginning of this lengthy Chicago Tribunefront-page investigation:

Supermarkets throughout the Chicago area are routinely selling seafood highly contaminated with mercury, a toxic metal that can cause learning disabilities in children and neurological problems in adults, a Tribune investigation has found.

In one of the nation's most comprehensive studies of mercury in commercial fish, testing by the newspaper showed that a variety of popular seafood was so tainted that federal regulators could confiscate the fish for violating food safety rules.

The testing also showed that mercury is more pervasive in fish than what the government has told the public, making it difficult for consumers to avoid the problem, no matter where they shop.

It is not by happenstance that contaminated fish can be found on shelves and at seafood counters throughout the region, from small neighborhood shops on the South Side to sprawling supermarket chain stores in the northwest suburbs.

The Tribune's investigation reveals a decades-long pattern of the U.S. government knowingly allowing millions of Americans to eat seafood with unsafe levels of mercury.

Regulators have repeatedly downplayed the hazards, failed to take basic steps to protect public health and misled consumers about the true dangers, documents and interviews show.

The government does not seize high-mercury fish that violate U.S. limits. Regulators do not even inspect seafood for mercury--not in ports, processing plants or supermarkets.

In fact, federal officials have tested so few fish that they have only a limited idea of how much mercury many species contain, government data show. For example, the government has tested just four walleye and 24 shrimp samples since 1978. The newspaper tested more samples of commercial walleye than the government has in the last quarter-century.

Ind. Gov't. - Good investigative story on Gary school system's mismanagement of its century-old art collection

Sharlonda L. Waterhouse of the Gary Post-Tribune has a nice piece of reporting today, headlined "Gary school superintendent denies mismanagement of art collection valued at $500,000." Some quotes from the beginning of the long report:

Original oil paintings by esteemed artists such as Theodore C. Steele, Frank Dudley and Karl Buehr have lined walls in Gary schools since the early 1900s.

The collection began as a tool to teach fine arts and instill culture under pioneering Superintendent William A. Wirt in 1906, but it has been reduced in the past century to an elusive, dwindling asset, often locked away from children’s eyes.

Some fear the district is close to losing an irreplaceable part of its art and educational history — whether by mismanagement, decay or mysterious pilfering.

Don’t ask Superintendent Mary Steele whether the district has failed to oversee its precious art properly. She doesn’t like disclosing details and won’t show premium pieces, which are allegedly kept in a secret vault.

Neither can Steele account for why a collection once boasting more than 200 works has been nearly halved.

“I don’t know if any are lost; they shouldn’t be lost,” Steele says, but declined to allow the Post-

Tribune to see inside the vault for verification.

“We know the paintings are there,” she said.

About 121 art pieces remain in the district, according to an inventory released by the public information office. That’s down from 133 pieces just 12 years ago. And down more than 87 from a 1939 count.

There is no record of formal auctions or sales in the past decades, so just what happened to the paintings entrusted to the stewardship of Gary Schools?

Neither Steele nor anyone on the School Board claims to know details. Formal tracking is lacking.

According to inventories obtained by the Post-Tribune, the district has failed to document whether they can locate at least five paintings: “Casinera” by Gerald Cassidy, “Indiana Dunes” by Helge Hopkinson, “Portrait of Daniel Webster” by Dorothy Jennings, “The Ash Tree” by Allen E. Philbrick and, most importantly, “Dunes, Lake Michigan” by Frank Dudley.

The Dudley, which was in the central administrative building in 1993, was then appraised at $2,500 by Michael A. Nickol of Mishawaka, who said it was in “excellent” condition. While it may exist somewhere in the system, it is no longer in the computer inventory of the district.

In shrinking, the district’s art collection also has downsized in dollars.

The works of art, whether accounted for or gone, are lucrative, ranging from $600 in value to more than $100,000 each.

The works of highest value and artistic merit are in the vault — like paintings by T.C. Steele and Edward Redfield.

That’s a pity to some who feel the collection should be seen and enjoyed. With the district on the verge of selecting a contractor for a new appraisal, there also are whispers that some of the paintings might be sold. Many art enthusiasts and community members, including School Board members Michael Scott and Deborah Morris, are against any sale.

Access the story online today -- the Post-Tribune does not archive its stories, even overnight.

Saturday, December 10, 2005

Law - Lawyer Charged With Stealing From Convicted Thief

"Lawyer Charged With Stealing From Convicted Thief: Joliet Lawyer Allegedly Stole From Lawyer Convicted Of Theft" is headline to the AP story via CBS2chicago.com:

AP) JOLIET, Ill. A Joliet lawyer is facing a theft charge for allegedly stealing thousands of dollars from one of his clients -- who just happens to be an attorney convicted of theft himself. * * *

Authorities have accused [forty-five-year-old J. Kevin Davis of Morris] of pocketing money former Romeoville attorney Charles Hahn stole from clients and was supposed to return under the terms of his 2002 plea bargain. Davis represented Hahn in that case.

Monday the South Bend Tribune had a story titled "Wood-burning outdoor boiler catching heat: Citing health, environmental concerns, neighbors object to resident's heat source." See the ILB entry here, which also links to the IDEM proposal to do a rulemaking limting such boilers.

Today the Indianapolis Star as a story, originally in the Vincennes Sun-Commercial, on how these boilers are the greatest thing since canned heat (was that STERNO?). All pros, no cons -- such as how does the smoke affect your neighbors? A few quotes:

BICKNELL, Ind. -- There's more to corn than just eating it. How about heating with it?

Although the idea sounds far-fetched, the concept of heating a home by using one of Indiana's most abundant crops has become more popular, especially with the expected rises in heating and electric bills.

Chuck Borgmeier, who lives just north of Bicknell, has been heating his home and water with corn for two years.

Borgmeier has cut his winter electric bills by more than 35 percent. Gas bills are a thing of the past. The price to heat his 1,500-square-foot home and water throughout the home: around $40 per month. "I'm in love with it," he said. * * *

Using a grain bin to hold cob-free seed corn, the burner operates by auguring the corn from the bin into a forge inside the burner, which is constantly burning. Even when not heating the home, the fire remains lit. "It's like a natural pilot light," Howder said.

Borgmeier's corn burner is outside in an old smoke house that provides shelter for the grain bin and 850-pound burner, which resembles a large water heater. This allows the home to be heated without having a live fire burning inside, Borgmeier said.

[Updated 12/11/05] Today's NY Times has a story about indoor wood stoves - it is titled "Finding savings around the fire." Indoor wood stoves are regulated by the EPA, as explained in the Times article (unlike the outdoor boilers, which are typically many times larger than indoor wood stoves and with higher emissions of particulate matter). Re the indoor wood stove, the Times reports:

A good overview can be found on the Environmental Protection Agency site, at epa .gov/woodstoves. It offers a list of 623 stoves certified as meeting E.P.A. emissions standards.

The E.P.A. site is also a good place to start because wood stoves have environmental issues. Some communities ban wood-burning altogether at various points in the winter, and many places require permits to use a wood stove, partly because their smoke represents the largest source of winter air pollution in some areas. Retailers typically know the local requirements.

The E.P.A. toughened standards for new stoves in 1992, cutting typical emissions levels by two-thirds. But it estimates that of roughly 10 million stoves in use, 7 million to 8 million do not comply because they were sold before 1992. In partnership with the Hearth, Patio and Barbecue Association, a trade group based in Arlington, Va., the E.P.A. has sponsored "change-outs" like one earlier this year in which the industry gave free E.P.A.-compliant stoves to residents of Libby, Mont., where wood stoves are the biggest reason that its winter air pollution is among the nation's worst.

Even smoke from stoves that comply with E.P.A. requirements can be bad for some people, like those with chronic conditions, the elderly and small children. And some organizations, like Clean Air Revival Inc., in Point Arena, Calif., have opposed the use of wood stoves. * * * Even E.P.A.-compliant wood stoves will generate much higher levels of emissions than other forms of fuel.

Ind. Gov't. - Phone company oversight to stay, rules IURC

"Phone company oversight to stay: State regulators act to level playing field" is the headline to this fairly long story by Lesley Stedman Weidenbener in today's Louisville Courier Journal. Some quotes:

[T]he Indiana Utility Regulatory Commission said in a unanimous 50-page order that competition in the state has not developed enough to entirely eliminate oversight of the companies and let the market take over.

Citizens Action Coalition utility director Dave Menzer said the ruling is a good one because it means the state will continue regulating former monopolies, including AT&T, the new name for SBC, which had been Ameritech and Indiana Bell before previous mergers.

In the past, those companies had assigned service territories, in which the state required them to serve every customer in exchange for a guaranteed profit.

But now the companies compete with others that want to provide the service and are not guaranteed a profit. So far that competition has not developed everywhere -- and may not without state oversight, Menzer said.

"We're pleased with this order because it appears the commission is interested in continuing to play a vital role as referee to keep those heavyweights from having an advantage over a flyweight competitor," he said. "From that standpoint, it's encouraging."

But the telephone companies are not so enthusiastic.

This is an excellent story that deserves to be read in full - it is not readily excerpted.

Upon arrival at the IURC site, I was delighted to find that the IURC has a new Electronic Docket System and that access to documents is now free of charge. For years this was not the case, and the ILB, for one, did not even attempt to follow IURC goings on.

One gripe, as you may discover for yourself if you should attempt to access the 50-page order. It is a scanned document, and hence a very large file and slow to appear on your screen. The even-greater downside: One can't readily "grab" quotes from it to place in another document.

One wonders why this is so, particularly for a document just produced this week at the IURC -- why was it necessary to scan a paper copy rather than use the digitized version? (Incidentally, this also means that the document can't be read via a text-reader, as required by the ADA, and by many hand-held users.)

GARY — Councilman Chuck Hughes should have $30,000 in his pocket soon, the result of this week’s court ruling in his seven-year legal battle with the city.

Whether the money will come from city coffers or from the lawyer who failed to meet court deadlines in the case is undecided.

“I practiced law for 20 years, mistakes happen. But you have to take responsibility for those mistakes,’’ Mayor Scott King said Friday. “The taxpayers shouldn’t have to pay this.”

The person who should pay, the mayor said, is attorney Darnail Lyles, who was representing the city.

A ruling this week from the Indiana Court of Appeals affirmed a local decision that the councilman was entitled to salary he lost after King discharged him as the fire department’s public information officer in 1998. * * *

Lyles did not file an appeal in the required time, forcing Judge Lorenzo Arredondo to rule in the councilman’s favor. Arredondo ordered the city to pay $27,998 in lost income through July 31, 2004. The city must pay interest accrued since the ruling.

“The sooner the better for all parties,” Hughes’ attorney, Macarthur Drake, said, referring to the final payment to his client.

Hughes was transferred from his appointed job to a fire station in 1998 after he joined in a lawsuit against the mayor, hoping to stop the privatization of the Gary Sanitary District.

King said Hughes couldn’t be a spokesman for the administration while involved in the suit and gave Hughes a choice. When Hughes didn’t withdraw from either, the mayor had him moved from the administrative job.

The name of the Court of Appeals opinion is Scott L. King, Mayor, City of Gary, In. v. Gary Fire Civil Service Commission and Charles Hughes (12/6/05). However, like the paint crew fire case written up here in the ILB yesterday, the Gary councilman decision was classified "not for publication" by the panel writing the opinion, and it is not available online.

So how do I even know the name of the case? Because, from the description given in today's Tribune story, I looked through this week's list of NFP opinions, prepared by the Clerk of the Court and posted by the ILB, until on page 2, row 2, I found what has to be the right case. (And the paint crew fire case is at the bottom of page 4.)

Bryan Corbin of the Evansville Courier& Press has a story today about the Supreme Court's Dec. 1 decision in the case of Leonard Lamont Frye v. State of Indiana (see ILB entry here). Some quotes from today's story:

Eight-time felon Leonard Lamont Frye broke into an elderly woman's house in 2003 and stole her only television, as well as her musical rocking horse, cavalry sword, costume jewelry, perfume n and bacon from her refrigerator.

A jury found Frye guilty of burglary and theft and because of Frye's lengthy felony record, Judge Robert Pigman sentenced him to 40 years in prison.

But the Indiana Supreme Court has reversed Frye's sentence, finding it "inappropriate." In a 4-1 decision, the supreme court instructed Pigman to re-sentence Frye to 25 years.

Both prosecution and defense said such a reversal is unusual.

"Any time the Supreme Court reverses or changes anything is pretty much of a rarity," said the defense attorney from Frye's trial, Sonny Reisz.

"It was practically unheard of five years ago, whereas today it's not," Vanderburgh County Prosecutor Stan Levco said, citing a change to appellate rules the Supreme Court made. Levco disagrees with the reversal. He said he will ask the Indiana attorney general's office, which handles appeals for prosecutors, to ask the court to reconsider its ruling. * * *

"As to the nature of the offense, there was no violence and there was marginal pecuniary loss," Associate Justice Frank Sullivan wrote for the majority, which included Chief Justice Randall Shepard and associate justices Theodore Boehm and Robert Rucker. Acknowledging Frye's "extensive criminal history," Sullivan wrote that Frye unsuccessfully sought treatment for alcoholism. "We agree with Frye that 40 years is inappropriate in light of the nature of the offense and the character of the offender," Sullivan wrote.

The court ordered Pigman to resentence Frye to 10 years for burglary and 15 years for being a habitual offender, a total of 25 years.

In a dissenting opinion, Associate Justice Brent Dickson chided the court for superimposing its judgment over Pigman's. Even though the victim wasn't home when Frye broke in, "this does not eliminate the enormous emotional impact and devastating sense of vulnerability and insecurity resulting from such a violation of the sanctity of a person's home," Dickson wrote. "Trial judges, not appellate judges, are in a far superior position to make sound sentencing decisions that are appropriate to the offender and the offense," Dickson continued.

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending December 9, 2005. There are 40 Court of Appeals cases (a number of these are cases reversed and remanded) listed this week, plus 2 Tax Court cases.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Ind. Decisions - 7th Circuit issues several opinions today

This case involves a tangle of
bankruptcy issues under the Code as it existed prior to
the effective date of the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005. * * *

We AFFIRM the judgment of the district court, which in
turn affirmed the judgment of the bankruptcy court,
dismissing Sidebottom’s Chapter 13 petition.

The other, an opinion by Judge Easterbrook, begins:

Resource Technology
Corporation turns garbage into money by collecting methane
from landfills, reducing the emission of a greenhouse
gas in the process. It either sells the methane or burns the
gas to make electricity. Installing methane-collection
systems is tricky, however, and Resource Technology landed
in bankruptcy because its outlays exceed its revenues from
harvested methane. This appeal concerns one of its moneylosing
ventures.

In this appeal Cecilia Gonzalez, who
downloaded copyrighted music through the KaZaA filesharing
network, denies the premise of Grokster and Aimster. She contends that her activities were fair use
rather than infringement. The district court disagreed
and granted summary judgment for the copyright proprietors
(to which we refer collectively as BMG Music). 2005
U.S. Dist. LEXIS 910 (N.D. Ill. Jan. 7, 2005). The court enjoined
Gonzalez from further infringement and awarded
$22,500 in damages under 17 U.S.C. §504(c).

A “fair use” of copyrighted material is not infringement.
Gonzalez insists that she was engaged in fair use under the
terms of 17 U.S.C. §107—or at least that a material dispute
entitles her to a trial. It is undisputed, however, that she
downloaded more than 1,370 copyrighted songs during a
few weeks and kept them on her computer until she was
caught. Her position is that she was just sampling music to
determine what she liked enough to buy at retail.

Instead of erasing songs that she decided not to buy,
she retained them. It is these 30 songs about which there is
no dispute concerning ownership that formed the basis of
the damages award. * * *

As for the injunction: Gonzalez contends that this
should be vacated because she has learned her lesson, has
dropped her broadband access to the Internet, and is
unlikely to download copyrighted material again. A private
party’s discontinuation of unlawful conduct does not
make the dispute moot, however. An injunction remains
appropriate to ensure that the misconduct does not recur as
soon as the case ends. See United States v. W.T. Grant Co.,
345 U.S. 629 (1953). The district court did not abuse its
discretion in awarding prospective relief.

The ILB had a long entry Nov. 30th titled "Marion County Judge Zore orders Lake County to pay Arthur Andersen $2.4 million." Today the Gary Post-Tribunereports that the Andersen ruling will be appealed:

Lake County will file an appeal of a $2.4 million judgment the county was ordered to pay disgraced accounting firm Arthur Andersen for work the company completed on the controversial 2002 property reassessment.

Members of the County Council and Board of Commissioners opted to proceed with the appeal of Marion County Judge Gerald Zore’s November decision, if only to meet the deadline to pursue such action, according to county attorney Gerry Bishop.

“We had 30 days (after Zore’s ruling) to file the appeal, so we did so,” Bishop said. “Whether we proceed with the appeal remains to be seen.”

Andersen sued the county for $11 million for reassessment work finished before the state terminated its contract with the firm in April 2002, as Andersen collapsed amid allegations it aided energy giant Enron in falsifying financial statements.

“There has been disappointment all along, but we did lower the judgment to $2.4 million from the $11 million Andersen was asking for,” Bishop said.

Negotiations may continue between the county and Andersen to try to reach an agreement short of returning to court, Bishop said.

Apparently this is not just something you see in TV shows. The Gary Post-Tribunereports today, in a story by Danielle Braff:

A key witness in the trial of ex-cop James Ervin was given perks while he was in prison that included sex with female visitors, sex with a female prison guard and use of a cell phone, U.S. Attorney Joseph Van Bokkelen said.

But these perks weren’t enough to prevent Ervin from getting a fair trial, a judge ruled. * * *

Ervin requested a new trial on the basis that a witness, Denny Arreola, allegedly may have been influenced by his special treatment while he was incarcerated at the Hammond city jail on drug-conspiracy and money-laundering charges.

John Theis, Ervin’s attorney, said the defense was never told about Arreola’s prison experience and thus didn’t have a chance to question the possible manipulations.

“The information was the kind of thing we should have known about so we could have cross-examined him about it,” Theis said.

Theis discovered details about the special treatment in a letter Nov. 28 from Van Bokkelen that focused on eight perks given to Arreola that Theis said may have unfairly influenced Arreola’s testimony. Arreola was allowed sexual visits in addition to receiving special food, special smoking privileges and a birthday party complete with balloons, cake and milk for his girlfriend’s celebration.

U.S. District Court Judge Theresa Springmann ruled that even with the alleged perks, Ervin received a fair trial. The jurors were aware that Arreola was linked to drug trafficking and homicide with Ervin, and they also were aware that Arreola was cooperating as part of a plea agreement.

Environment - Biodiesel plant, ducks unlimited

HAMMOND | The city is leading the fight against air pollution and dependency on foreign oil with approval of the state's first biodiesel manufacturing plant.

Wolf Lake Terminals Inc. will begin producing clean-burning, renewable soybean-based fuel for vehicles early next year at its 34-acre facility on the southern shore of Wolf Lake.

Company officials picked up their permit Thursday morning at City Hall after approval by the Board of Zoning Appeals on Wednesday night. They aim to produce as many as 5 million gallons of environmentally friendly fuel annually. * * *

Burning biodiesel fuel produces no harmful emissions, and is made from heating soybeans -- a significant Indiana agricultural product -- with wood alcohol and an alkaline catalyst. * * *

The only by-product from producing biodiesel fuel is glycerine, said Wes Berry, consulting engineer for the project. The glycerine will be shipped elsewhere for refining for use in toothpaste, hand lotion and other personal care products.

Ducks. The Fort Wayne Journal Gazettereported yesterday on a plan to raise ducks for human consumption in Noble County. Ligonier-area property owners Ernest and Luella Mae Lehman were denied a zoning variance "to build a 40-by-350-foot building to house ducks closer to a nearby road and Amish school than what county ordinances allow." Instead:

Ernest Lehman told board members that he plans to use a pit underneath the building to collect the manure, and he plans to spread the manure on his ground as fertilizer.

More from the report:

Marsha Woorell, whose property sits downhill from the Lehmans, said she already gets significant runoff during heavy rain that turns her backyard into a pond. She expressed concern Wednesday about how the manure from the ducks will be contained. * * *

“If they do that … I’ve got grandbabies that run outside in the backyard. If there would be a spill or whatever they call those I can’t verify the safety of my grandbabies or my neighbors,” Woorell said. * * *

Board Chairman George Bennett reminded those in attendance several times that the issue to be decided was variances, not whether to allow the confined feeding operation.

The confined feeding operation the Lehmans plan to start is allowed under county ordinances, and duck operations do not require Indiana Department of Environmental Management approval unless there are more than 30,000 ducks on the property, Kirkpatrick said.

Environment - More on: Ethanol plant earns Wells limited backing

Wells County Council members struck the appropriate balance between being good stewards of county taxpayers’ money and taking a reasonable economic development risk in their vote Tuesday on a proposed ethanol plant.

The council’s decision to pledge about $500,000 a year in county economic development income tax money to back a $31.6 million bond wasn’t what the plant’s developers wanted. But it was the most county government could reasonably and responsibly devote to a private enterprise. * * *

Council members were right to steer away from using property tax revenues to back a larger amount of $50 million. Property taxes provide the bulk of county government’s general fund income, and a default could seriously hurt the county’s finances for many years.

Council members rightly expressed deep reservations about pledging future property tax revenues for a private project. As councilwoman Karolyna Farling explained: “I just don’t feel that people in my districts have ever … given me permission to spend their tax dollars on private enterprise.”

Law - A take on "The government may withhold Social Security benefits in order to collect old student loan debts"

The Supreme Court ruled unanimously Wednesday that the government may withhold Social Security benefits in order to collect old student loan debts.

The decision gives the government an enhanced tool for collecting billions of dollars in student loans by making it clear that a 10-year time limit on the government's ability to collect debts through a process known as administrative offset does not apply to student loan debts.

Ind. Decisions - Court of Appeals remands sentencing decision

Indiana Code § 9-24-19-1 states “a person who operates a motor vehicle upon a highway while the person’s driving privilege, license, or permit is suspended or revoked commits a Class A infraction.” Trotter’s original conviction of a Class A misdemeanor required those same elements along with proof of a prior conviction under Ind. Code § 9-24-19-1 or § 9-24-19-2. Because the only difference is the requirement of a properly documented prior conviction, the Class A infraction is a lesser included offense of the Class A misdemeanor.

The evidence was sufficient to establish the material elements common to both offenses. Trotter was driving the Isuzu and his license was suspended. Therefore, we direct the trial court to modify the judgment from a Class A misdemeanor to a Class A infraction. * * *

CONCLUSION. The evidence is insufficient to sustain Trotter’s convictions of auto theft and driving while suspended as a Class A misdemeanor. However, we remand for the court to enter judgment on the count of driving while suspended as a Class A infraction. Reversed and remanded.

Ind. Courts - Millionaire Emmis CEO battles Honda over $1,945

"Millionaire Emmis CEO battles Honda over $1,945: Smulyan says repo attempt invaded his privacy; car company says arrogance is driving lawsuit" is the title to a great story today by Kevin Cocoran in the Indianapolis Star. Some quotes from a fairly long story:

But the broadcast and magazine mogul says principle has compelled him to wage a two-year court fight that could go to trial early next year.

Smulyan was livid when men entered his wooded estate near Eagle Creek Reservoir on Memorial Day weekend 2003 to repossess the 2000 Honda Accord EX leased by his fiancee, who had fallen behind on her payments. * * *

When the facts come out in court about Honda's repossession tactics against his wife, Heather, he said, a jury will side with him against the finance company. The couple married in July 2003.

"Their approach has been one of remarkable institutional arrogance," Smulyan said in a telephone interview last week from New York, where he was meeting with investors. "I'm probably one of the few people on the planet who can do anything about it."

Neither Smulyan nor the finance company has spared much expense in their legal battle, which has occupied the time of a half-dozen highly paid attorneys for more than two years.

In court filings attempting to quash subpoenas for depositions of Honda Finance employees, Mortier accused Smulyan of having "nearly limitless resources" to harass the company. Smulyan's attorneys counter that such a claim is "disingenuous," given that Honda Finance reported $1 billion in annual revenue last year. * * *

Marion Superior Court Judge Cale Bradford, who would preside over what's expected to be a two-day trial, declined to comment.

He has held two pretrial conferences and received a 3-inch stack of pleadings from the parties, who have reserved the right to call more than a dozen witnesses, including Emmis board members and mental health experts who can testify regarding how the repo attempt may have affected Smulyan.

Today's Indianapolis Star reports on a decision by the Court of Appeals yesterday. The headline is "New sentence is ordered in paint crew fire: Judge shouldn't have considered trauma's effects, appeals court says." Some quotes from the story, by Kevin Cocoran:

An Indiana appeals court on Thursday ordered a new sentencing for Tommy C. McElroy, who admitted setting a fire on I-465 in 2003 that killed two men and badly burned several others on his paint crew.

The Indiana Court of Appeals ruled that Marion Superior Court Judge Tanya Walton Pratt relied on improper factors to lengthen McElroy's eight-year prison sentence on two counts of reckless homicide and one count of criminal recklessness.

Writing for the 3-0 court, Judge Edward W. Najam Jr. found Walton Pratt had, under Indiana law, improperly cited the burn victims' trauma and its effects on their families as a reason for giving McElroy the maximum sentence on each charge in February.

Unfortunately, this decision is not available online because the appellate panel classified it as "Not-for-Publication" (NFP), which means not only that it may not be cited as precedent, but that copies of it are not available online via the Court's website. Here is the relevant portion of the docket entry:

Copies of the decision are available to the press, from the Clerk's Office, and to anyone who goes to the Clerk's Office in the Statehouse and requests a copy (copying is $1.00 per page). The ILB every week publishes a list of that week's NFP opinions, which may be accessed via the Category "NFP Lists" in the right-hand column.

The ILB is attempting to obtain a copy -- check back.

[Update] Thanks to the great staff at the Indiana Court of the Courts office for sending the ILB a copy of the McElroy opinion within 5 minutes of my request. I've posted it here.

Ind. Decisions - Judge is dismissed as defendant in lawsuit

"Judge is dismissed as defendant in lawsuit" is the headline to a brief story today in the Indianapolis Star, reporting:

Judge Thomas J. Carroll of Marion Superior Court has been dismissed as a defendant in a lawsuit filed by a former court reporter who says she was a victim of racial discrimination.

U.S. District Judge Sarah Evans Barker ruled in September that Carroll cannot be sued because Indiana's Constitution prohibits such lawsuits against court officers. A portion of Ernestine Kimbrough's lawsuit against the Marion Superior Court is proceeding.

Ind. Gov't. - House Ways & Means committee meetings NOT online

On Nov. 21st the ILB published an entry noting House Speaker Brian Bosma's announcement that House Ways & Means committtee meetings would be online. The W&M Committee is holding three hearings in December (see W&Ms agenda), with important testimony that many Hoosiers would be interested in. From the announcement last month, I assumed that these W&Ms hearings would be broadcast and archived online via this location. But there is no sign of them.

Here is the Fort Wayne Journal Gazette reporter Niki Kelly's story, headlined "Legislative leaders see tax relief differently," on yesterday's W&Ms hearing, and on the 2005 Legislative Conference, an all-day seminar on the upcoming session that the ILB, among hundreds of others, attended yesterday. (Here is the agenda.) Kelly's story begins:

INDIANAPOLIS – House Republicans on Thursday kicked off a series of special Ways and Means Committee meetings to explore the possibility of providing limited property tax relief for homeowners in the upcoming legislative session.

But the plan doesn’t appear to have much traction in the Senate, where fiscal leader Sen. Robert Meeks, R-LaGrange, told attendees at a political conference earlier in the day that the state needs to own up to its current obligations before taking on new ones.

Thursday, December 08, 2005

Gregory and Staci Tober filed
this action pursuant to Indiana’s Product Liability Act
(“IPLA”), seeking recovery for the heartbreaking death
of their eight-month-old son, Trevor Tober. Following a
week-long trial, a jury rendered a verdict in favor of Graco
Children’s Products, Incorporated (“Graco”), finding that
the Tobers had failed to prove by a preponderance of the
evidence that one of Graco’s products, the Lil’ Napper
Plus Battery Powered Swing (“Lil’ Napper”) model no.
12-476 manufactured in 1995 by Century Products Company (“Century”),1 was defective. On appeal, the Tobers
contend that the district court erred in the exclusion of
certain evidence at trial, in certain rulings the district court
made as a matter of law prior to trial, and in how the
district court instructed the jury. Notwithstanding the
tragic death from which this case arises, we agree with
the district court’s rulings and, therefore, affirm.

Connie Pierce Gardner appeals the trial court’s dismissal of her Complaint to Vacate Judgment Procured by Fraud in favor of her ex-husband, Ernie Pierce. Finding that the issue presented by Gardner was conclusively litigated in an action properly before the Texas state court system with both sides fully participating, we affirm the trial court.

We conclude that the trial court’s interpretation of Indiana Code Sections 13-26-5-3 and -4 sweeps too broadly and produces the absurd result of allowing district boards to reallocate appointments whenever they perceive a threat to their turf or tenure.10 There is no statute that specifically permits a district board to do so, and we find no implied power to do so in Indiana Code Sections 13-26-5-3 and -4. * * *

We are therefore unpersuaded by the District’s argument that its resolution was justified under Indiana Code Section 13-26-5-4 as a means of protecting its assets from being obtained, purportedly at no cost to Carmel, in the proposed merger supported by Clay Township Trustee Hagan.12 Reasonable minds may differ as to the wisdom of a particular merger, but we conclude that the relevant statutes do not permit a district’s board to reshuffle itself to avoid (or facilitate) one. * * *

We find it curious indeed that IDEM saw fit to exercise this implied power until recently, when its legal counsel interpreted the statutes otherwise. * * *

[W]e conclude that the trial court abused its discretion in denying Clay Township’s motion for preliminary injunction. We therefore reverse.

Morritz J. Weiss appeals the trial court’s Trial Rule 12(B)(6) dismissal of his complaint, which challenged the Indiana Parole Board’s imposition of sex offender parole conditions on him, and his Motion for Preliminary Injunction. Indiana Code § 11-13-3-4(b) gives the Indiana Parole Board authority to impose any condition on a parolee that has a reasonable relation to the parolee’s reintegration into the community and is not unduly restrictive of a fundamental right. Because the imposition of the sex offender parole conditions on Weiss meets these requirements, Weiss’s complaint was properly dismissed. We therefore affirm the trial court.

SULLIVAN, J., dissents with separate opinion:

I respectfully dissent as to Part I.

It appears that were it not for the specific wording of I.C. § 11-13-3-4(g) the general provision of I.C. § 11-13-3-4(b) would permit the Parole Board to impose a condition that a person not convicted of a crime defined under I.C. § 5-2-12-4 register as a sex offender, so long as the conditions of parole were reasonably related to the parolee’s successful reintegration into the community and not unduly restrictive of a fundamental right.

The presence of I.C. § 11-13-3-4(g) however persuades me that such is not the case with respect to the parolee here. This provision is specifically and unmistakably focused upon persons convicted of the crimes enumerated in I.C. § 5-2-12-4. Here, Weiss was convicted of aggravated battery, a crime not covered by I.C. § 5-2-12-4. In this respect, although the circumstances of the commission of Weiss’s crime might well be relevant to imposition of sex-offender conditions were it not for I.C. § 11-13-3-4(g), the latter provision speaks to the legislative intent in enacting the statute in the manner and form which was done. * * *

Although it would be within the prerogative of the General Assembly to amend the statute to reflect the policy inferred by the majority in its opinion here, the statute in its present form and in the clear and unmistakable language chosen does not so provide.

Wednesday, December 07, 2005

"Federal judge halts plans for Mason Tract drilling" is the headline to this story this afternoon on the Detroit Free-Press website. It appears the injunction was issued just in time.

Plans to begin site preparation for a controversial gas drilling operation adjacent to a wilderness preserve and the South Branch of the AuSable River were blocked Wednesday by a federal judge in Bay City.

U.S. District Court Judge David Lawson’s order blocks plans by Savoy Energy to start road and site work in the Huron-Manistee National Forest east of Grayling. Environmental groups opposed to the natural gas drilling went to court this year to challenge permits issued to Savoy.

Savoy was to begin clearing more than 3 acres of land for the well this week, said Anne Woiwode, director of the Michigan chapter of the Sierra Club.

The gas well has been approved by state and federal regulators over the objections of a coalition of angling and conservation groups. The opponents believe that noise, road-building and potential pollution from the well will erode the quality of one of the lower peninsula’s last true wilderness areas and a top-quality trout stream.

The lawsuit contends that Savoy and regulators failed to adequately consider less-intrusive alternatives to the current drilling plan.

The case was set to begin next week, said Rusty Gates, with the Anglers of the Au Sable, but the groups went to court for help after learning last week of company plans to move forward on clearing trees and widening roads.

The Anglers and the Sierra Club believe noise and pollution associated with the proposed drilling will damage the 5,300-acre Mason Tract and the South Branch fishery, one of the most prized in Michigan. State and federal regulators, however, claim the company has met the requirements necessary to begin drilling.

There may be parallels here to the stories this week about the proposed Jasper County CAFO, which Indiana state agencies have authorized to be built bordering the Jasper/Pulaski Fish and Wildlife Area, an internationally recognized “Important Bird Area.” See ILB entries here and here.

With regard to the practicalities and peculiarities of this case, the Auditor gave notice reasonably calculated to apprise the party indicated in its records as having a substantial interest in the property, at the address in the public record creating or indicating that interest. Because the tax deed notices were not returned to the Auditor as undeliverable, return receipt postcards confirmed delivery of both notices, and neither U.S. Bank nor its predecessors-in-interest ensured the Auditor’s record reflected correct address information, the notice provided by the Auditor complied with the statutory requirements of Indiana law as well as constitutional considerations of due process. Therefore, we reverse the trial court’s denial of Diversified’s summary judgment motion and its grant of relief from the tax deed order in favor of U.S. Bank. We remand for reinstatement of the tax deed, and a grant of summary judgment quieting title for Diversified. Reversed and remanded.

Judge May dissents with an opinion that begins:

The majority characterizes the question before us as “whether the alternative address written on a return receipt postcard by an unknown party is sufficient to supply inquiry notice of a change of address to the Auditor . . . .” Unlike the majority, I would answer that question in the affirmative. I accordingly dissent.

Parents brought this interlocutory appeal, asserting it was one “of right” because it is “based upon an order denying delivery of possession of real property.” We cannot agree.

This court may dismiss appeals upon its own motion when it discovers it does not have jurisdiction. Bayless v. Bayless, 580 N.E.2d 962, 964 (Ind. Ct. App. 1991), trans. denied. An appeal from an interlocutory order is not allowed unless specific authority is granted by the Indiana Constitution, statutes, or the rules of court. Moreover, any such express authorization for an interlocutory appeal is “strictly construed.” Schwedland v. Bachman, 512 N.E.2d 445, 49 (Ind. Ct. App. 1987). * * *

Parents' appeal is not one “of right” because the trial court’s order did not order the delivery of the real property now in possession of Son. Therefore, because we lack authority to exercise jurisdiction, we are unable to consider Parents’ arguments as to why they believe the trial court erred in not granting them immediate possession on the merits. Dismissed.

When the trial court denied its motion to dismiss and compel arbitration, the defendant, Daimler Chrysler Corporation, brought this appeal without first seeking trial court certification to initiate an interlocutory appeal pursuant to Indiana Trial Rule 14. The plaintiffs, Samuel and Diane Yaeger, filed a motion to dismiss the appeal, which a majority of a panel of the Court of Appeals denied, holding that it had discretion to address the appeal under Indiana Appellate Rule 66(B). Daimler Chrysler Corp. v. Yaeger, 818 N.E.2d 527 (Ind. Ct. App. 2004). Judge Vaidik dissented. We granted transfer. Agreeing with the dissent, we hold that Appellate Rule 66(B) does not authorize an interlocutory appeal that fails to comply with Appellate Rule 14. * * *

For Daimler Chrysler to appeal from the denial of its motion to dismiss and compel arbi-tration, it was required to first seek and obtain certification from the trial court authorizing an appeal from the interlocutory order. This it failed to do. We therefore grant the Yeagers' motion to dismiss the appeal. This appeal is dismissed, and the cause is remanded to the trial court.

Brownfields."State seeks EPA funds for clean land plan" is the headline to a story today in the Gary Post-Tribune. Some quotes:

Officials at a new state program for cleaning and reusing former industrial land are applying for a $2 million U.S. Environmental Protection Agency grant.

The EPA money would back the Indiana Brownfields Program and its $3 million revolving-fund program, with no-interest loans on brownfields projects for up to 10 years.

The state has had brownfields programs before, but they were run by two agencies — the Indiana Development Finance Authority and the Indiana Department of Environmental Management.

This year, the Indiana General Assembly passed a law designating the Indiana Finance Authority, a new agency, as the brownfields program’s administrator.

IDEM still handles the program’s technical aspects, but under the Indiana Finance Authority’s direction.

“Now the external users know there’s one agency they call if they have a brownfields question,” said James McGoff, director of environmental programs for the Indiana Finance Authority.

Access the Indiana Finance Authority's Brownfields Redevelopment webiste here.
Indiana Toll Road. The Indiana Finance Authority is the same entity that is soliciating proposals "seeking an experienced toll operator to enter into a long-term lease to operate and maintain the Indiana Toll Road." Here is the main webpage for the RFP. Check particularly the 20-page RFP itself. The responses were due Oct. 26th: "The State may determine in its discretion whether to accept any responses that are not received by the date and time set forth in this paragraph. Based on the RFP submissions, the State will determine those Teams that are qualified to bid on the Lease as submissions are received." What happens next?

After the State’s review of RFP submissions, Bidders that are deemed qualified by the State will sign a Confidentiality Agreement and receive a Confidential Information Memorandum providing additional information on the Toll Road and the bidding process. Qualified Bidders may be asked to submit preliminary, non-binding bids for evaluation. Bidders accepted for due diligence will have the opportunity to conduct due diligence of the Toll Road through: (i) access to an on-line data room; (ii) Toll Road tours and additional inspections by Bidder representatives; (iii) management presentations; and (iv) review and discussion of the State’s proposed Toll Road Concession and Lease Agreement (the “Lease Agreement”). Following this due diligence process, final and binding bids will be submitted in accordance with procedures to be provided to the remaining Bidders.

Bidders may be required to comply with certain other requirements before submitting final bids.

If the final and binding proposals received at the conclusion of the solicitation process meet the State’s objectives, the State expects to enter into the Lease Agreement with the successful Team (the “Private Operator”). The State reserves the right to modify or terminate this solicitation at any stage if the State determines this action to be in its best interests. The receipt of proposals or other documents at any stage of either the RFP or the bidding process will in no way obligate the State to enter into any contract of any kind with any party.

The Lease Agreement will be a long-term agreement granting the Private Operator the exclusive right to operate the Toll Road and to collect toll revenue from the Toll Road during the term of the Lease Agreement, anticipated to be at least 50 years. The Lease Agreement will include operating standards related to the operation, maintenance, and tolling of the Toll Road with which the Private Operator will be required to comply. Upon entering into the Lease Agreement, the State will use a portion of the proceeds of the Lease to defease or extinguish all outstanding Toll Road debt.

The website contains no recent information. A story in Forbes indicates bids are due Jan. 7, 2006. See also this story in the Nov. 30th Elkhart Truth, and this story today from the Munster (NW Indiana) Times.

Ind. Courts - Judges decline to join Good Government Initiative

"Judges decline to join Good Government Initiative: Chief judge says it's best for courts to do jobs, avoid scrutiny" is the headline to a story by Bill Dolan in today's Munster (NW Indiana) Times. Some quotes:

CROWN POINT | Lake Superior Court judges have ruled out their participation in the Good Government Initiative, an study of local government efficiency.

Chief Superior Court Judge John R. Pera said this week, "While all of us are concerned about good, efficient government, we are a separate branch that ought to pay attention to getting our own house in order."

Pera is the chief administrator for civil, criminal, county and juvenile judges who have a budget of more than $18 million and a payroll of more than 500 employees.

The ILB has not been following this Lake County initiative. It is controversial. See, for instance, this column from Nov. 9 by Mark Kiesling. And this Nov. 4th story headlined "Lake council lawyer calls ethics pledge 'McCarthyism.'" For all sides, search for "good government initiative" in the Times excellent archives.

Ind. Decisions - Judge off the bench 60 days

"Judge off the bench 60 days" is the headline to this story today in the Gary Post-Tribune, about the Supreme Court's disciplinary ruling yesterdayIn the Matter of the Honorable James Danikolas. Some quotes from the story by John Byrne:

A veteran Lake County judge has been ordered suspended from the bench for two months for firing a magistrate after she testified against him.

The state Supreme Court Tuesday ruled Lake Superior Court Judge James Danikolas be suspended for 60 days without pay for terminating Magistrate Kris Costa Sakelaris in 2003 because she gave truthful testimony against him in a prior disciplinary investigation.

The court also ordered Danikolas to pay $10,894 in court costs associated with the case. * * *

Danikolas, who first took the bench in 1977, has contended he fired Sakelaris for ineptitude. But the Supreme Court found he presented “fallacious excuses” under oath for terminating her. These excuses are “prejudicial to the administration of justice,” the court decision states.

The court’s ruling follows that of the state Commission on Judicial Qualifications, which earlier this year recommended Danikolas be suspended without pay or removed from the bench for his behavior. * * *

Sakelaris, meanwhile, has filed a federal lawsuit, seeking her former job back, plus lost wages and benefits. She is also asking for unspecified compensatory and punitive damages.

The suspension is to begin within the next two weeks, according to the Supreme Court ruling.

The Munster (NW Indiana) Times has a report by Bill Dolan. Some quotes:

The Indiana Supreme Court is temporarily removing Lake County's most veteran judge from the bench for abuse of power.

Lake Superior Court Civil Division Judge James Danikolas must serve a 60-day suspension without receiving that portion of his $98,000 annual salary. He also must reimburse the state $10,894 for the 21-month investigation of his misconduct.

The high court ruled in a 4-1 decision Tuesday that Danikolas violated the state's Code of Judicial Conduct by firing Kris Costa-Sakelaris as his family-court magistrate over a personal vendetta. * * *

This comes less than three years after the Supreme Court publicly reprimanded the 69-year-old judge for a related ethical violation. * * *

The opinion states Danikolas later complained aloud to another court employee, "Doesn't (Magistrate Sakelaris) realize who her boss is? Doesn't she realize who she works for?"

He fired her less than five months later, claiming she did her job poorly.

The high court states there is "clear and convincing evidence that Judge Danikolas harbored retaliatory animus toward Magistrate Sakelaris from her failure to 'fall on her sword' ... then lied to cover up his motive."

Sakelaris also is suing the judge in U.S. District Court over her firing. That case is set for trial next year.

Ind. Decisions - Muncie vote fraud case will likely go to trial in the spring, after Court of Appeals ruling

Agnes Murphy was charged with unauthorized receipt from a voter of a ballot prepared by the voter for voting, a Class D felony, after she accepted a ballot in a sealed envelope from an absentee voter and put it in a mailbox. She moved to dismiss the charge on the ground the statute under which she was charged is unconstitutional, and she brings an interlocutory appeal of the denial of her motion. Murphy raises two issues on appeal, which we restate as:

1. Whether the statutory prohibition of unauthorized receipt from a voter of a ballot prepared by the voter for voting is void for vagueness and/or overbreadth; and

2. Whether receipt of a sealed envelope from an absentee voter and delivery of the sealed envelope to a mailbox amounts to “unauthorized receipt . . . of a ballot.”

The State asserts Murphy does not have standing to challenge the statute. We agree and accordingly affirm.

MUNCIE -- An Indiana Court of Appeals has given local prosecutors the go-ahead to continue pursuing felony vote fraud charges against the mother of Muncie City Council member Monte Murphy.

The case against Agnes Murphy, 63, will likely go to trial sometime in May, although a date has not been determined, Delaware County Deputy Prosecutor Eric Hoffman said. Authorities alleged she improperly handled voter absentee ballots and tried to influence an elderly woman during the 2003 election.

Murphy has been charged with "unauthorized receipt from a voter of a ballot prepared by the voter for voting," a class D felony, after she accepted a ballot in a sealed envelope from an absentee voter and put it in a mailbox, according to the appeals court opinion.

Her attorney, John H. Brooke, filed a motion in Delaware Circuit Court 4 to dismiss the criminal charges. He argued that the statute was unconstitutional because of its vagueness and breadth.

Judge John Feick ruled against the defense and in favor of the prosecution. The issue was then taken up by the court of appeals.

The court of appeals ruled late last month that Feick made the right decision and that Murphy did not have standing to challenge the statute.

The process by which a pending case can be reviewed by a higher court is called an interlocutory appeal and happens three or four times a year in Delaware County, Hoffman said. * * * The case comes back to Court 4, though the defendant can still appeal to the Indiana Supreme Court.

Environment - Ethanol plant earns Wells limited backing

"Ethanol plant earns Wells OK with tax backing" is the somewhat misleading headline to this story today by Rebecca Green in the Fort Wayne Journal Gazette. Check this earlier ILB entry for background and links. Today's story reports:

BLUFFTON – The Wells County Council voted unanimously Tuesday to use economic development income tax money to back the financing for a proposed $134 million ethanol plant, but their support is far less than investors in the project had wanted.

The economic development income tax revenue would only be spent if the plant were built and then failed.

Officials with Indiana Bio-Energy LLC had been asking the council to back a $50 million bond to help build the 100 million gallon plant on the western edge of Bluffton.

During a lengthy presentation Tuesday night, the investors offered the council a proposal to back a $31.6 million bond using county adjusted gross income tax dollars.

But the council expressed concerns about using adjusted gross income tax money, viewed as “property tax money,” to pay for a private business venture.

The council instead voted to back the bonds with about $500,000 a year in economic development income tax dollars if the project defaults.

The amount approved by the council is about one-third of what the investors requested.

“I know that every single one of us on council is in favor of this project,” Karolyna Farling said. “But we’ve been put in an impossible situation.”

Indiana Bio-Energy, made up of a group of local investors including a Wells County commissioner and the chief executive officer of the Wells County Chamber of Commerce, wanted the council to make the decision by the end of the year so they could take advantage of guaranteed construction costs. * * *

Farling described the quandary council members found themselves in, accused of being against the project if they expressed any negative opinion.

“But never before has a private company come and said, ‘We’re going to start a business, and we want you to take some taxpayer money and give us a loan,’ ” Farling said. “I just don’t feel that people in my districts have ever, they have not, given me permission to spend their tax dollars on private enterprise.”

The investors asked the council to sign a non-binding resolution supporting the project, a proposal dodged by the commissioners earlier in the week.

The investors left before the council voted on the matter. [Attorney David] Dale told the council that if the council could not support the project, the investors would likely take the project to another county for development.

“If this doesn’t go forward here, than we’ve lost three months of time and thousands of dollars trying to do something nice for our home county,” Dale said.

The council would not vote on the resolution, but instead voted 7-0 to use any available county economic development income tax dollars to help back the project, but not to use any property tax money.

“No one is against the project, but they’re all against the funding,” Councilman Larry Brown said.

Environment - More on: Concern about proposed Jasper County CAFO bordering the Jasper/Pulaski Fish and Wildlife Area

The AP has picked up yesterday's Gary Post-Tribune story (see ILB entry here), and the Fort Wayne Journal Gazette has headlined it"Hogs vs. sandhill cranes: Residents near wildlife refuge fight 2,500-sow farm permit." Because the Tribune doesn't archive its stories, I can't check back but I don't remember these paragraphs in yesterday's version. It looks like DNR may be trying to have it both ways:

DNR spokesman Michael Ellis said a letter that Glen Salmon, the DNR’s director of Fish and Wildlife, sent to IDEM declares that the wildlife area’s wetlands “are major use areas for the sandhill crane and other water birds in both the spring and fall migrations.”

Although the DNR believes the hog farm will not have a detrimental effect on the wildlife area, Ellis said, “in case anything would happen, our concerns are on the record.”

The State Employees’ Appeals Commission (“SEAC”) ordered the Indiana Department of Environmental Management (“IDEM”) to create new positions for three employees who contend they suffered age discrimination in the course of a reorganization of IDEM. Based on our review of the record, we hold that the employees did not make out a prima facie case of age discrimination because they did not show that they had been replaced by significantly younger persons. We also hold that SEAC has no authority to order the Department to create new positions as a remedy. * * *

Having previously granted transfer, we now reverse the trial court’s decision af-firming SEAC’s decision. This case is remanded to the trial court to direct SEAC to dis-miss Employees’ claim.

Shepard, C.J., and Dickson, J, concur.

Boehm, J., concurs in part and dissents in part with separate opinion, which Rucker, J., joins. [Justice Boehm's opinion begins on p. 15]

For the reasons the majority gives, I agree that the State Personnel Act does not authorize SEAC to require IDEM to create positions that do not currently exist.

I do not agree with the majority’s conclusions as to a prima facia case of age discrimination. First, I believe the majority adopts an incorrect view of the law applicable to these facts. The majority adopts the federal burden-shifting approach to Title VII discrimination actions as instructive for Indiana’s State Personnel Act. I agree that the federal approach enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) should be followed under the Indiana statute. * * * However, I do not believe that the majority opinion correctly describes the federal approach as applied to the facts in this case. Here we are reviewing a claim of age discrimination that was incurred as a result of a consolidation of departments, not a direct termination.

As explained below, in that context, I believe there is no requirement to show replacement by a younger person. As the Seventh Circuit has explained, the focus in claims of discrimination is “whether the plaintiff has established a logical reason to believe that the [employment] decision rests on a legally forbidden ground. That one’s replacement is of another race, sex, or age may help to raise an inference of discrimination, but it is neither a sufficient nor a necessary condition.”

The Commission charged Judge Danikolas with violating Canons 1, 2, 2(B), 3(B)(2), and 3(C)(1) of the Code of Judicial Conduct by discharging Kris Costa Sakelaris (“Magistrate Sakelaris”) from employment as a Lake Superior Court Magistrate in retaliation for testimony she provided during a previous disciplinary matter brought against Judge Danikolas. The present matter was tried before three Indiana trial court judges appointed to serve as masters in this proceeding. See Ind. Admission & Discipline Rule 25(VIII)(I). Following the trial, the masters filed their “Report of Findings of Fact, Conclusions of Law, and Recommendation” (hereinafter “Masters’ Report”) with this Court, as provided by Admission and Discipline Rule 25(VIII)(N)(1). Thereafter, the Commission filed its Recommendation; Judge Danikolas filed a Verified Petition for Review, Response to the Commission’s Recommendation, and Brief; and the Commission filed a Reply.

The matter has been tried, fully briefed, and reviewed by this Court. Having considered the evidence and submissions of the parties, along with the Masters’ Report, we concur with the masters that the Commission has proven by clear and convincing evidence that Judge Danikolas committed judicial misconduct. Further, we concur in and adopt the masters’ recommendation that Judge Danikolas be suspended for sixty days without pay. * * *

I agree with the majority that “[t]he heart of the present case turns on what truly motivated Judge Danikolas to discharge Magistrate Sakelaris.” And because finding a violation of the Canons at issue here is based in large measure on resolving conflicting testimony and assessing witness demeanor and credibility, I agree there is clear and convincing evidence that Judge Danikolas discharged Magistrate Sakelaris in retaliation for her perceived disloyalty during her deposition in Danikolas I. I write separately however to emphasize that but for Judge Danikolas’ position as a judicial officer, his actions in this case would not be sanctionable at all. * * *

I am thus compelled to agree that a sanction is appropriate in this case. However, I disagree that suspension from office without pay for sixty (60) days is warranted. This is far too punitive for conduct that otherwise would merit no sanction whatsoever. In my view a public reprimand is sufficient. On this issue I respectfully dissent.

Ind. Decisions - 7th Circuit posts four today

The defendants appeal these sentences, claiming that the district court erred in failing to make precise calculations of the total offense levels and corresponding sentencing ranges under the United States Sentencing Guidelines (“Guidelines”). We agree, and therefore vacate the sentences and remand for resentencing.

The fourth case is Harper v. Vigilant Insurance, an Illinois case. It involves a now deceased plaintiff, who was trying to recover from the man who allegedly infected her with HIV/AIDS, via his parents' homeowners insurance policy.

"Voters, activists put heat on judges: Interest groups, playing to voter resentment, mount TV attack ads" is the headline to this lengthy story published 12/5/05 in the Chicago Tribune. Some quotes:

In South Dakota, tens of thousands of angry voters signed petitions for a ballot proposal informally known as "J.A.I.L. 4 Judges," enabling ordinary citizens to haul judges into court.

In Pennsylvania, where voters never had rejected a state Supreme Court incumbent seeking re-election, a justice was tossed from office last month because people were furious about a pay raise for state officials, including judges.

And in Wisconsin, a state Supreme Court justice whose opinions angered business interests faces the possibility of a $2 million campaign against his re-election next spring, organized by an interest group based in Washington, D.C.

Far beyond the public rough-and-tumble politics attached to U.S. Supreme Court nominations, formerly obscure and second-tier elections for seats on state courts have become battlegrounds of culture wars, tort reform and other business cost issues, as well as contests that give voters the opportunity to act on popular cynicism and resentment toward the judiciary.

At the same time, judges are under increasing partisan attack for any number of reasons--gay-rights rulings, decisions regarding prayer and, early this year, failure to intercede in the case of Terri Schiavo, the brain-damaged Florida woman who died after her feeding tube was removed by court order. Criticism from many conservatives, including President Bush, about so-called activist judges who legislate from the bench has become part of the political vernacular and the public psyche.

While interest groups--business, labor, trial lawyers--used to devote their efforts and money exclusively to legislatures and executive offices, now they are fine-tuning their strategies and going after judges, the final arbiters of difficult and emotional issues such as tort liability, abortion and criminal justice.

The ILB has had a number of entires on the North Dakota and Pennsylvania issues, and plus entries and a Res Gestae article on the effort during the last session to make Indiana appellate judges and justices subject to Indiana Senate confirmation and review. All these postings may be located via the category "Indiana Courts" in the right column.

And there is another story today, via the Philadelphia Inquirer, on the Pennsylvania retention vote, which turned on a "midnight pay raise" passed by the Pennsylvania legislature that included raises for the judges, and resulted in one Suprmee Court justice being turned out of office last month via the 10-year "yes or no" retention ballot. Recall that after viewing the election results, the Pennsylvania General Assembly retreated last month and repealed the pay raise. There was speculation that a judge might sue -- see this ILB entry for background. Sure enough, the headline of today's story is "Judge files suit to restore pay hikes." Quotes:

At the time of the repeal vote last month, many lawmakers said lawsuits were inevitable given the question over the legislature's ability to control judges' salaries. Some lawmakers predicted that after the extraordinary Election Day defeat of Supreme Court Justice Russell M. Nigro, judges would be loath to challenge the repeal.

The lawsuit says the bill subjects the judiciary to the "whims of the legislature," thereby compromising the constitution. The "act was not undertaken in the best interests of Pennsylvania, but rather solely for the internal concerns and paranoia of the legislature." * * *

The legislature, stung by voter response, was poised to repeal its action but was stalled for weeks over the question of whether lawmakers have the power to cut judges' salaries. But lawmakers argued they did have the power if they cut salaries for all affected state workers at once. The final bill signed by Rendell on Nov. 16 rolled back salaries for lawmakers, members of the executive branch and judges to pre-July 7 levels.

"We hope the Supreme Court looks at the intent of the legislation which was very clear to repeal in its entirety for everyone," said Sen. Sean Logan (D., Allegheny), sponsor of the pay raise repeal amendment in the Senate. "We didn't pick on one branch."

But Sheppard's suit argues that the legislature, for the first time, was acting in accordance with the constitution when it approved raises for judges that were based on salaries of the federal judiciary.

Reacting to the suit, Drew Crompton, chief counsel for Senate President Pro Tempore Robert Jubelirer (R., Blair), said: "Anytime a judge questions the motives of the legislature he should have something to go on. It was not capricious. The bill was deliberated over for three weeks because of the constitutional issues and to ensure it would apply to all three branches."

On December 1, 2003, Relators filed a verified petition to enjoin Diaz from the unauthorized practice of law (“Petition”). The Petition alleged Diaz engages in the unauthorized practice of law by: (a) selecting and completing immigration forms for individuals seeking immigration assistance; (b) advising individuals on immigration matters; (c) giving advice that is legal in nature and exceeds filling in blanks on a legal document; (d) using the title “Notario” or “Notario Publico,” which is inherently misleading to Spanish speaking people; and (e) advertising and promoting her services without disclaiming she is not an attorney. The Petition seeks to enjoin Diaz from: (1) selecting immigration forms for individuals seeking immigration assistance; (2) advising individuals on immigration or other legal matters; (3) using the title “Notario” or “Notario Publico;” and (4) advertising, affirmatively self promoting, or calling to public attention her services without disclaiming she: (i) is not an attorney; (ii) cannot tell individuals what immigration forms they need; (iii) cannot tell individuals which immigration benefits they may be eligible for; and (iv) cannot give advice on how to complete an immigration form. * * *

The requirements to become a notary public in Indiana are not stringent. * * * A notary’s powers consist primarily of certifying acknowledgments of deeds and other legal instruments, administering oaths, and certifying affidavits and depositions. A notary public may charge no more than two dollars ($2) for each notarial act.

By contrast, in many Latin American countries “notarios publicos” are a select class of elite attorneys, subject to rigorous examinations, regulation, and codes of professional responsibility, who perform quasi-judicial and other functions, including certifying and authenticating legal acts that they witness. Some notaries public in the United States have exploited Latinos’ expectations about their functions and legal knowledge, creating an illusion of expertise to mislead those who depend on them. Plying on the implicit misrepresentation of their credentials, some notaries charge excessive amounts for services that should be free or nominal in cost, in some cases destroying immigrants’ ability to pay for legitimate legal assistance. * * *

[T]his Court finds Diaz’s use of the title “Notary Public” or “Notario Publico” to be inherently misleading. One of her business cards contained the title not once, but twice. The title was prominently displayed after her name on the awning of her office. She displays her notary certificate prominently in her office, akin to the manner one might display a diploma. Although Diaz corrects people who refer to her as an attorney by telling them she is a notary public, not an attorney, there is no indication Diaz corrects any misperception those people might have about the authority that comes with that title in Indiana. There is no indication that any substantial part of Diaz’s business involves legitimate services as a Notary Public, and the fees she charges for her services are far above those permitted for notarial acts. Under these circumstances, the Court concludes Diaz’s use of the titles “Notary Public” and “Notario Publico” in advertisements, on business cards, on her office wall, and on her awning constitutes the unauthorized practice of law. [citations omitted]

The ruling concludes with an injunction listing specific practices in which Diaz may no longer engage, followed by:

This injunction does not prevent Diaz from providing clients with translation and other services that do not constitute the unauthorized practice of law, as long as clients are advised of the limits of Diaz’s services consistent with the above injunction.

The costs and expenses of the hearing before the Commissioner shall be borne by Diaz.

Ind. Decisions - Court of Appeals issues four today, including one reversal by reason of ineffective counsel

Christopher Parish, pro se, appeals the denial of his petition for post-conviction relief. His main arguments on appeal are that his trial and appellate counsel were ineffective and that he is entitled to a new trial on his charges of attempted murder and robbery resulting in serious bodily injury on grounds of newly discovered evidence. Concluding that Parish has established by a preponderance of the evidence that he received ineffective assistance of trial counsel, we reverse the post-conviction court, vacate Parish’s convictions, and remand for a new trial. * * *

Here, the trial court gave the jury instruction the Bowen court recommended; however, the court wrongly supplemented it. As such, counsel should have objected to the offending portions of the instruction, and he was deficient for failing to do so. * * * Given that the only issue at trial was identification, the jury had several questions concerning two of the main eyewitnesses, and the jury did not hear testimony that the crime may not have occurred as the eyewitnesses testified, Doty’s failure to object to the instruction was not clearly harmless.

After analyzing these two instances of trial counsel deficiency, we conclude that Parish has shown a reasonable probability that had Doty independently investigated the shooting, presented that evidence, and then objected to the Allen charge, the result of the proceeding would be different. Parish has overcome the high burden of convincing us that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. We therefore vacate Parish’s convictions and remand for a new trial. Reversed.

The Chesterton Tribune reported last Friday, 12/2/05, in a story by Paulene Poparad:

Porter Superior Court Judge David Chidester on Wednesday upheld the Porter Board of Zoning Appeals Sept. 15, 2004 decision not to grant a variance for David and Cheryl Lagestee.

Unless the couple appeal Chidester’s ruling within 30 days, they will be faced with having to tear down one of three garages, known as accessory structures, at their 420 Wagner Rd. home.

The 2004 variance sought to legalize a substantially-completed third accessory structure, which is contrary to Porter’s zoning ordinance.

That garage, a $32,000 pole barn, was built based on a Porter building permit issued by then-building commissioner Doc Whisler in 2003. It wasn’t until April 18, 2004 that Dave Babcock, Porter building commissioner at that time, issued a stop-work order on the pole barn because town code limited the number of accessory structures in the Lagestees’ Residential-2 zoning district to no more than two, including attached garages. * * *

The judge wasn’t swayed by the Lagestees’ arguments that they would suffer “significant economic injury” and stood to lose their investment in the pole barn if the variance wasn’t granted; Chidester also said they weren’t exempted from the conditions of the zoning ordinance just because a building permit was issued.

Chidester said the issue for determination for his court was whether the Lagestees showed that denying the variance would result in practical difficulties in the use of their property, and whether the Porter BZA set forth supportable, factual findings to deny the variance.

The judge criticized the BZA’s 2004 findings and a supplemental finding he requested the BZA submit last month. Nevertheless, Chidester decided one BZA finding is supported by previous Indiana court rulings, namely, that a self-created hardship, even one that is the result of a misunderstanding between a town representative and a property owner, does not create a “practical difficulty.”

Wednesday’s decision addressed one final matter. The Lagestees had alleged that their rights to due process in the 2004 hearing were violated by long-time BZA member Lorain Bell because he had prejudged their petition. During the meeting Bell had referred to other zoning matters in which the Lagestees were involved.

Chidester ruled that “because Member Bell was able to cite other reasons which do consist of proper findings on the issue of practical difficulties and self-created hardship, the court believes his statements on other issues to be mere puffing.”

Environment - Concern about proposed Jasper County CAFO bordering the Jasper/Pulaski Fish and Wildlife Area

A hog farming company is facing a collection of close-knit neighbors banding together to keep their land free from what they see as a blight on their community.

In spite of a 1,000-signature petition against it, and after two meetings with Jasper County’s Board of Zoning Appeals, Belstra Milling Co. of DeMotte has begun work on a 2,496-sow hog farm, just north of where the Reeses live. On the farm’s northern border is the Jasper/Pulaski Fish and Wildlife Area, an internationally recognized “Important Bird Area” because it supports a significant proportion of the species’ total population. About 20,000 cranes migrate through it every year, and about 30,000 people visit every year to watch them.

Diane Packett, president of the Sycamore Chapter of the Audubon Society in West Lafayette, said she would be worried about any major developments in the cranes’ migration path.

“If they put a shopping mall in the same place, we would still be worried about it,” Packett said.

The Reeses and a coalition of other neighbors want Belstra stopped, and they are appealing Belstra’s permit from the Indiana Department of Environmental Management. Belstra representatives insist their worries are baseless, but the Reeses don’t want any harm to come to the cranes who gather on the very land where the manure from the farm will be injected.

“Why did they pick here?” Reese said.

Malcolm DeKryger, Belstra’s vice president, said the answer to that is, in part, because of the small population of people in the surrounding area.

“We really do have very few number of people within a mile,” DeKryger said.

Also, he said, he is confident the Reeses and those working with them have nothing to worry about when it comes to the cranes. DeKryger has looked to the Department of Natural Resources’ Jim Bergens, the property manager of the Jasper/Pulaski area who has a degree in Wildlife Management from Humboldt State University in California, to help make sure the cranes are safe.

“The DNR was represented at both (BZA) meetings,” DeKryger said. “As a matter of fact, they were very supportive.”

The DNR recently told Bergens not to speak to reporters about the Belstra development. However, that order came after he spoke to the Post-Tribune last week.

Bergens said his opinions on the Belstra matter are based strictly on his background knowledge of the cranes and the Jasper County area. He said he has done no research on what the Belstra farm might do to the area. * * *

Recently, Bergens said, endangered whooping cranes have joined the migration path. Some of them have been found in Jasper County as recently as mid-November. They are part of a “nonessential experimental” project, Bergens said.

“If something were to happen to these birds,” Bergens said about the whooping cranes, “they’re not essential to the actual wild population.”

The Sandhill cranes, Bergens said, began to thrive through various types of protection and resilience against human progress.

“Some species are able to adapt to what people have done to the environment,” Bergens said.

That resilience might be tested again. If Belstra’s farm is built, hog manure will be injected 6 to 8 inches under the soil that the cranes congregate on. Belstra will use GPS technology to make sure the waste goes where it won’t cause any damage, DeKryger said.

Ind. Gov't. - More on: Lake County printing contracts questioned

CROWN POINT — Lake County department heads will be required to certify all their 2006 contract requests are up to date, in order to prevent bidders from defrauding the county.

After learning bidders for 2006 county printing contracts responded to out-of-date bid forms, County Commissioners attorney John Dull on Monday sent a letter to county departments ordering them to verify their hundreds of bid requests.

“We want them to check every line item and send us a letter back that they checked and those quantities are what they expect to need in 2006,” Dull said. “We want these certifications back before the commissioners make any recommendations on 2006 contracts.” * * *

Lake County Purchasing Agent Brenda Koselke said she removes items from the bids if departments inform her they no longer need an item.

“I didn’t receive any notification about these reports,” Koselke said. “(The Sheriff’s Department) should tell me. They never told me.”

Lake County police Cmdr. Dennis Heaps said the department did send the commissioners notification three years ago that they were switching to computerized offense reports and no longer needed the paper products. * * *

With the sheriff’s forms removed, Haywood of Lafayette remains the low bidder on the 2006 Class 5 contracts, with a proposal of $48,664.

But Haywood’s recalculated bid is only $179 lower than the $48,843 bid by A-1 Union Graphics, Inc. of Hammond.

A-1 owner Eddie Shonk said with such a slight difference, his shop should get the nod because it keeps the work in Lake County.

“Why ship it out of here? We wouldn’t ship it to Illinois,” Shonk said.

But Commissioner Fran DuPey, D-Hammond, said the Board is obligated to accept the “best, lowest bid.”

“I would love to see the work stay in Lake County, but I don’t think that gives us the right to vote against the lowest bid,” DuPey said.

Ind. Courts - More bad news re Randolph County Courthouse: Commissioners say "It's time to move on with demolition"

"Commissioners abruptly halt Randolph Courthouse discussions" is the headline to this story today by Joy Leiker in the Muncie Star-Press. Some quotes:

WINCHESTER -- The Randolph County commissioners on Monday abruptly abandoned discussion on the fate of the county courthouse and approved a motion to discontinue their regular semimonthly updates on the issue.

In the words of a commissioner who favors tearing down the building that sits in the center of downtown Winchester, it's time to move on with demolition and the search for temporary courthouse space. * * *

During an interview Monday afternoon, [Commissioner Ron] Chalfant said that, six months removed from the decision to demolish the courthouse, the county has made no progress. In the long run that indecision will cost taxpayers more, he said. It's already cost Randolph County its chance to buy the former Wal-Mart store at 970 E. Washington St. A Kentucky developer finalized the sale of the building last week and now is interested in leasing it to the county as a temporary courthouse location.

"We sit in there month after month listening to people give us information, and at some point we've got to back up," Chalfant said. "In June we voted to raze the old building and that has not changed. We need to move on with that. It's a little difficult to move in that direction when we have opponents filling up all the space every time we meet."

Chalfant pointed to the fact that another resident asked the board's permission to survey the building. It's a public building, and taxpayers don't need to ask permission, he said.

"We've been down this road for six months. People in and out of that building doing assessments. We're at the point now that we want to move on," he said. "The building is just in bad, bad condition, and it's only going to get worse."

The ILB has had nearly a dozen entries on this issue - find them by typing "Randolph County Courthouse" in the search box.

Monday, December 05, 2005

Courts - More on : Kentucky website on courts criticized, compared

Recall the Louisville Courier Journal article from Sunday, Nov 27th, that said, among other things: "Kentucky has put court records online for the public, but the state's new Web site provides virtually no useful information, some users say." (See ILB entry here.)

Well, today the LCJ has a letter from the Chief Deputy Clerk, Jefferson Circuit Court Clerk's Office in Louisville. He writes:

As a longtime employee of the state courts, I concur with The Courier-Journal's Nov. 27 story about the minimalist information on the state court's Web site. While I understand the Administrative Office of the Court's concern over the potential loss of a citizens' privacy, I don't believe they have done their homework.

Court systems across the country have long since resolved these issues and have begun allowing more and more interaction via the Internet. States that have emerged on the leading edge of this technology have seen huge savings of money and resources. Additionally, accepting debit or credit cards over the Internet effectively solves the problem of bounced checks, since the transfer of funds is immediate.

Before I became chief deputy clerk, I worked at AOC and coordinated the effort to build our new computer case-management system, KYCOURTS. This system was built in Louisville because it is the largest and busiest court in Kentucky, and because Circuit Court Clerk Tony Miller has long supported using technology to improve the service the court system offers to the public. KYCOURTS was created specifically with the platforms necessary to provide information over the Web, as well as the ability to transact court business via the Web.

With the encouragement of the Jefferson Circuit Court Clerk's office, The Courier-Journal and the citizens of our community, the AOC must come around to the reality that having information is what makes democracy great. Let's continue to work together to put them ahead, rather than behind the curve.

"Legislature should pray privately" is the headline to a signed editorial by Rick A. Richards, City Editor of the Michigan City News-Dispatch. Some quotes:

No one should be surprised at the reaction of members of the Indiana General Assembly to U.S. District Court Judge David Hamilton's ruling barring sectarian prayer as a part of official business in the House.

Democrats and Republicans are outraged over the decision, saying it's legislation by the judiciary and that it's a violation of the First Amendment right of free speech.

Come on, get a grip.

For decades elected officials have tried to sneak the name of God or Jesus Christ into public affairs, something that's clearly prohibited by the Constitution.

But when you have an exclusive club of 150 members like the General Assembly and all but one of them are either Catholic or Protestant, what can you expect? The only non-Christian in the General Assembly is state Rep. David Orentlicher, D-Indianapolis, who is Jewish.

There is not one Muslim, Hindu, Buddhist or Mormon in the Legislature. Naturally, when that many members are marching to the tune of the same God, members are going to be angry at a ruling like this.

But before they get too outraged over Judge Hamilton's ruling, they ought to read their own Bible.

Making a big deal out of public prayer, as it the wont of elected officials (the better to gain votes), isn't smiled upon in Matthew 6: 5-6. * * *

In his ruling, Hamilton said, “All are free to pray as they wish in their own houses of worship or in other settings. Those who wish to participate in a practice of official prayer must be willing to stay within constitutional bounds.” * * *

The problem seems to be that legislators like to wear their religion on their sleeve. They want people to know how religious they are. They want to shove it down the throats of those who don't believe the way they do - and that's wrong.

Anyone's religion - or lack of one - is their own business. It ought to be an intensely personal and private relationship. I agree with Matthew 6: 5-6. When I see someone openly praying at a public event, I wonder what they're trying to hide.

There is absolutely nothing in Judge Hamilton's ruling that prevents any member of the General Assembly from praying quietly on their own. It's the same in school. Any student can pray quietly any time they want.

My religion is my business. I don't need anyone invoking God's name on my behalf - especially someone who's trying to pick up a few votes for the effort.

Recall Judge Posner's stinging rebuke in an immigration decision, Benslimane v. Gonzales, last week, including: "Our criticisms of the Board and of the immigration judges have frequently been severe" followed by one full page of citations. (See ILB entry here.)

Cahit Durgac, a Kurdish university
student from Turkey, applied for asylum on behalf
of himself and his wife, Ozgur Yasar, contending that he
was detained and beaten by the Turkish security services
because he formed a Kurdish study group. The Immigration
Judge (IJ) denied the application, finding that Durgac was
not credible and that he did not have a well-founded fear of
future persecution. The Board of Immigration Appeals
(BIA) affirmed without opinion. Because we conclude that
the reasons the IJ gave for rejecting Durgac’s credibility do
not, even under deferential review, support his conclusion,
we grant the petition for review and remand for further
proceedings. * * *

We conclude that the IJ’s adverse credibility determination
is not supported by substantial evidence. Durgac’s
credibility must be reassessed in light of this opinion. If
he is found to be credible, then the IJ must determine
whether an 18-day detention coupled with blindfolding,
underfeeding, and multiple beatings amounts to past
persecution, and if so, whether the government can rebut
the presumption that would arise of a well-founded fear
of future persecution.

The arrest came after his client, a defendant in a DUI case, provided the judge with two emails from Pratt before her trial started today. * * *

One email says in part: "they won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."

The story includes the text of three lengthly emails, allegedly communications between the attorney and the client.

Environment - Wood-burning outdoor boiler catching heat

"Wood-burning outdoor boiler catching heat: Citing health, environmental concerns, neighbors object to resident's heat source" is the headline to this story today in the South Bend Tribune. Outdoor wood-fired boilers (OWB), according to the story:

look like small sheds with chimneys. A water reservoir surrounds the box where the wood is burned. The heated water is pumped into the building through underground pipes. * * *

Federal law regulates indoor wood-burning stoves, but not the OWBs.

In August, the states of Michigan, New York, Connecticut, Maryland, Massachusetts, New Jersey and Vermont, and the Northeast States for Coordinated Air Use Management asked the U.S. Environmental Protection Agency to come up with regulations on the outdoor wood burners.

Their request cites pollutants listed in a New York State Environmental Protection Bureau report.

The pollutants are fine particles of soot and dust, carbon monoxide, benzene, dioxins, polycyclic aromatic hydrocarbons and other chemicals.

The report says they can cause irritation, coughing and shortness of breath, and over the long term possibly cancer. Those pollutants may exacerbate asthma or trigger asthma attacks.

"Even when operated using clean seasoned wood, OWBs can emit significant pollution because the basic design of the OWB causes fuel to burn incompletely, or smolder, resulting in thick smoke and high particulate emissions," according to the report.

The Indiana Department of Environmental Management is collecting comments on possible restriction on OWBs.

The possibilities include establishing emission standards for the units, restricting what units can be used and how and where they can be used, and banning all or some of them.

[Jim] Donnelly thinks the federal government should have implemented the restrictions a long time ago. He said the EPA issued a report on them in 1998 and should have done something then.

Here is the IDEM request for written comments. They are due by Jan. 3, 2006. In addition, according to the request for comments (#05-332) IDEM is forming a workgroup, which will meet Dec. 14, 2005.

Ind. Gov't. - Obtaining public information from the Indiana Economic Development Corp. [Updated]

Jennifer Whitson of the Evansville Courier& Presswrote yesterday about the status of the Evansville region in receiving state-paid economic development incentives. The story begins:

INDIANAPOLIS - The state of Indiana's lead economic development agency has given companies $165 million in state-paid incentives, but only a sliver has been spent in Southwestern Indiana, according to an analysis by the Evansville Courier & Press.

The Indiana Economic Development Corp. replaced the former Department of Commerce as an economic development agency soon after Gov. Mitch Daniels took office in January. Daniels said the change will help the state focus more on luring new businesses to Indiana and helping promote expansion among existing companies.

In a separate story, Whitson wrote about the difficulty in obtaining information from the IEDC:

While Indiana Economic Development Corp. President Michael Maurer understands the need for open records when he's making deals with taxpayer money, he bemoans it.

"(Releasing deal information) creates a handicap for the state," Maurer said. He said every incentive package deal is "subject to a lot of compromise and negotiations."

When those details get printed in the paper, every subsequent company wants to start negotiations from that point or better, Maurer said.

"The way it is today, we can never get a better deal than the last deal because everybody knows what we've already compromised for," he said. "If we were in private business, those details would never be disclosed and we'd have an opportunity to negotiate a better deal."

When the Evansville Courier & Press requested a list of all finalized state incentive package offers, the IEDC turned over a list with 116 projects.

Five projects, including one in Vanderburgh County, did not include a company name. That project is slated to create 150 new jobs with an overall $36 million price tag and $2.7 million in state aid committed.

The law creating the IEDC requires the corporation to release the "terms of the final offer of public financial resources communicated by the corporation to an industrial, a research, or a commercial prospect."

Maurer said the state's offers to the five unnamed companies are final, but the project is not complete because the companies do not have signatures or other "little details."

Asked whether the names of the companies should be released because the state's offers are final, he said: "I hope not because if we released them before the company got board approval, they may not even want to negotiate with us."

This caused me to look back at the Indiana Democratic Party's open government project, which I recalled included on its list of requests this notation: "COMPLETED: Final offers of public financial resources by IEDC."

Via this earlier ILBentry, I retrieved and reviewed the open government project announcement that stated: "All requests will be posted on the party’s website, www.indems.org, and whatever documentation the party receives in response to those requests will be scanned and posted on the website."

So, was there more here than the Evansville reporter was able to obtain? No. Upon accessing the IEDC entry, I found that all that is posted is a letter from the IEDC assuring the requestor that "we will make all disclosable information covered by your request available for your review."

Saw your post on the IEDC stories that ran in Evansville over the weekend. The IEDC did provide all of its final offer letters; unfortunately, I haven’t had the time to scan them all in and post them on our website. I believe what Jennifer [Evansville C&P reporter, Jennnifer Whitson] requested was a database created by IEDC; I asked for the actual letters because I wanted to put together my own database. * * * We’ll have the records up and available soon.

Kathleen Sullivan is a noted constitutional scholar who has argued cases before the Supreme Court. Until recently, she was dean of Stanford Law School. In legal circles, she has been talked about as a potential Democratic nominee for the Supreme Court. But Ms. Sullivan recently became the latest prominent victim of California's notoriously difficult bar exam. Last month, the state sent out the results of its July test to 8,343 aspiring and already-practicing lawyers. More than half failed -- including Ms. Sullivan.

Although she is licensed to practice law in New York and Massachusetts, Ms. Sullivan was taking the California exam for the first time after joining a Los Angeles-based firm as an appellate specialist. * * *

Ms. Sullivan, 50 years old, did not return phone and email messages seeking comment. Her firm said she wasn't reachable over the weekend because she was in a remote location.

There is, of course, much more, including what most of us already assumed:

Critics says the test is capricious, unreliable and a poor measure of future lawyering skills. Some also complain that California's system serves to protect the state's lawyers by excluding competition from out-of-state attorneys.

Sunday, December 04, 2005

Law - "Transparency" in government, in business, and in the judicial process

The always excellent Legal Theory Blog, the work of Prof. Lawrence Solum, features in its Sunday Legal Lexicon for law students this week the concept of transparency. The essay begins:

Sooner or later, most law students encounter the idea that "transparency" (as opposed to "opaqueness") is a desirable characteristic in markets, procedures, and governance institutions (both private and public). But what is "transparency" and why is it a good thing? This entry in the Legal Theory Lexicon provides a very brief introduction to the concept of transparency for law students (especially first-year law students) with an interest in legal theory. The basic idea of transparency is simple: things go better when processes are open. Markets function best when transactions are public. Judicial processes work best when they are visible to the participants and the public. Governments work best when both inputs to decisions and the meetings in which decisions are made are public. This post provides a brief introduction to the idea of transparency in a few important contexts.

Environment - State of New York Brownfield Cleanup Program "badly flawed in execution"

"A Cleanup That's Easier Legislated Than Done" is the headline to the story today in the NY Times that could form part of a case study in a public policy course. Some quotes:

Two years ago, the New York State Legislature passed what it called the most significant environmental legislation in recent memory, the culmination of a seven-year effort to turn many long-abandoned industrial sites into usable properties.

The law, hailed by an unlikely coalition of environmentalists, government officials and real estate interests, seemed to set the stage for economic revitalization in neighborhoods blighted by such sites - in no small part because of tax incentives offered to developers willing to clean up the sites. * * *

But two years after the legislation passed, only slightly more than 100 of the state's thousands of industrial sites have been approved for the program. As well, scores of developers, confused about the program's regulations, still have no idea whether they qualify to participate. * * *

Officials at the Department of Environmental Conservation, which is overseeing the program, say many applications have been filed with the state and that they are encouraged by the response from developers and others.

They contend that any new program of this size can be expected to encounter some snags.

"The Brownfield Cleanup Program has made substantial progress since its creation just over two years ago with more than 240 applications submitted to the program in that short period of time," said Dale Desnoyers, the department's official in charge of the program.

But some developers and community groups say the environmental agency, while well-intentioned, is too understaffed to deal with the paperwork and other aspects of a sprawling new program.

In many ways, some legislators and development experts say, the experience of the brownfield cleanup program is emblematic of New York's way of doing business: later and more strangely than any other state in the union. New York was the last former manufacturing center to pass a brownfield law, and it structured its incentive program in a way that seems to favor large developers.

In fact, many of the program's problems, these people say, stem from the Legislature's decision to give tax credits up to 22 percent of the total cost of a project on a brownfield. Most states offer tax credits based only on the cleanup cost, rather than the project's total cost.

If developers here do not spend all their credit, they are eligible for a check for the difference. Participants get protection from lawsuits and a letter when they have completed their work declaring the site clean, which can be useful in attracting investors. * * *

Some of the most acute frustration with the state has been felt by nonprofit organizations interested in building low- and moderate-income housing. They say their applications - for cleaning up and building on smaller, less toxic sites - have been rejected because those sites are not contaminated enough. * * *

[Critics say] the environmental agency had basically decreed that sites available for development had to have been the scene of major toxic spills. * * * "There are swaths of areas around the Bronx River, in many cases in low- or moderate-income neighborhoods, where those sites are not eligible as defined by D.E.C.," said Linda Shaw, legal chairwoman of the National Brownfield Association, which represents developers who want to develop brownfields.

Mr. Desnoyers of the D.E.C. insisted that all projects get the same consideration, no matter their size or what will ultimately go on them.

Tension has also continued between environmental groups - who generally believe that the most important thing is to clean up hazardous sites, no matter what their ultimate use - and economic development interests that generally believe that a cleanup without a development goal is a wasted opportunity. * * *

Lawyers and developers point to New Jersey and Pennsylvania as states with easier-to-navigate programs. Those programs, which offer more modest tax breaks than New York's, have produced hundreds of cleaned-up properties since their inception a decade ago. "Pennsylvania is a very streamlined program," said Kenneth J. Warren, an environmental lawyer in Philadelphia.

LANSING, Mich. -- Judges in Michigan cannot use a person's race, sex, religion or nationality to select jurors under a new rule approved by the Michigan Supreme Court.

The order, approved on a 4 to 3 vote, was released on Friday and will take effect on Jan. 1.

Under the order, discriminating on the basis of race, color, religion, national origin or sex when selecting a jury "is prohibited even in cases where the purpose would be to achieve balanced representation." * * *

Opponents of the rule change, including the Michigan Judges Association and the Michigan Department of Civil Rights, said it is unnecessary, vague and could prompt legal challenges. * * *

The ruling follows efforts by some Wayne County judges to have more racially representative juries. A study ordered by a judge there found that 27 percent of those who report for jury duty in Wayne County are black, though blacks account for 42 percent of the county population. Court administrators have responded by trying to issue more jury summonses to people in cities with higher percentages of black residents.

"My concern is, what steps are being taken to fix this?" asked Wayne County Circuit Judge Deborah Thomas, speaking of the overall racial imbalance in juries.

She said she has never tinkered with the process but is frustrated by a system that she believes is unfair. "I mean, are we just going to continue to have juries that aren't representative?" she asked.

Thomas said a new state law prohibiting felons from serving as jurors makes it even more difficult to balance the juries because a disproportionate percentage of African Americans have felony convictions.

Chief Judge Mary Beth Kelly said the court is aggressively tracking down people who fail to respond to jury questionnaires -- many of them minorities -- and educating them about the importance of serving. An expert from a national center for court studies will assess the situation this month and offer recommendations, she said. * * *

[T]he county prosecutor's appellate chief, Timothy Baughman, complained that some judges meddled with the selection process in individual cases -- dismissing prospective jurors solely to try to achieve a racial balance. But excusing jurors based on their race -- regardless of the reason -- is illegal, the Supreme Court ruled in a 4-3 decision that adds language to court rules making that clear.

"Discrimination on the basis of race, color, religion, national origin or sex during the selection process of a jury is prohibited, even in cases where the purpose would be to achieve balanced representation," the ruling read.

The three dissenting judges -- echoing many in Michigan's legal community -- said the rule change was unnecessary and redundant because the law was already clear.

Ind. Decisions - Federal ruling on public prayer leaves Bosma in a quandary

"Federal ruling on public prayer leaves Bosma in a quandary" is the headline to a story by Lesley Stedman Weidenbener in today's Louisville Courier Journal. Some quotes:

INDIANAPOLIS -- House Speaker Brian Bosma hasn't decided yet what to do about a federal court ruling that forbids official prayers that include Jesus Christ or refer to any other specific religion. Bosma, R-Indianapolis, could -- and almost certainly will -- appeal. He could seek an injunction that bars the ruling from being enforced until an appeal is completed. He could defy the order, which instructs him specifically to tell clergy or others what their prayers can't include.

Bosma said he hasn't ruled out any possibility -- even defiance. And it's his decision, although he's consulting and may work with the Indiana attorney general on the case.

The story points out that originally the Indiana Civil Liberties Union sued:

the speaker of the House, in his official capacity with the General Assembly. Along the way, though, Bosma requested that the suit include his name and the judge granted the request. So now, the lawsuit is also about him.

Ind. Gov't. - Lake County printing contracts questioned

CROWN POINT — Companies vying for lucrative annual Lake County government printing contracts have been bidding on work they will never be asked to perform.

The three companies that applied to the County Board of Commissioners for the 2006 contracts bid on at least two work orders to print forms that have not been used in years.

The discovery has spurred the Commissioner’s Office to undertake a wholesale audit of dozens of 2006 county bids, to look for other oversights that could give an unfair advantage to a firm that knows it will not be asked to fill a particular order.

The outdated bid sheets for 2006 appear to have benefited Haywood Printing Inc., a Lafayette company that has had the county printing contract for the past several years.

Haywood’s bids on two orders to print three-ply paper offense reports for the Lake County Sheriff’s Department totaled $140.

The third bidder, P & H Printing Etc. of Whiting, gave a quote of $4,480 to the county for the work.

Asked about possible reasons for the discrepancy, Lake County Police Cmdr. Dennis Heaps said the department has not used the paper forms since 2003, when the switch was made to computerized offense reports.

"State justices decide jailed defendants must be tried within 6 months of arrest" is the headline to a lengthy story by Sara Eaton in today's Fort Wayne Journal Gazette. Some quotes:

Half a dozen attorneys surrounded Allen Superior Court’s criminal cases scheduler Wednesday, some looking harried, some frantically scanning their Palm Pilots. When given a date for a trial in mid-January, defense attorney Quinton Ellis blurted out, “January. That’s next month. I can’t be ready by then.”

The scene Wednesday was caused by an Indiana Supreme Court ruling from late August that essentially put a new twist on an old law. It has forced attorneys, judges and court officials to scramble and reschedule trials in pending cases with jailed defendants.

The twist has caused a frenzy because some cases must be rescheduled sooner or defendants could be released from jail without posting a bond.

Anyone charged with a crime being housed in jail must be tried within six months of being arrested. Sounds simple enough, but previously defendants were expected to voice an objection when the trial was being scheduled if they wanted the trial to happen sooner.

The Indiana Supreme Court, while addressing an appeal stemming from a Tipton County murder case, ruled that defendants no longer have to lodge that objection, meaning a trial must be scheduled on the court calendar within six months of the arrest.

And, if a defendant is held at the jail for six months and has not been tried, the court must release the person from jail. The charges are not dismissed, but the person is free without paying any type of bond. * * *

The Supreme Court ruling provides only limited circumstances when a trial can be delayed beyond the six-month time frame: A defense attorney can ask the court for a continuance; if acts of the defendant cause such a need; or if a judge must delay the case because of trial court congestion, meaning several trials are scheduled to begin on the same day.

A person charged with murder in the death of a 10-year-old girl in southern Indiana’s Jackson County [see below] has already cited the ruling in a motion seeking release from jail pending the outcome of his case, according to The Associated Press. No ruling has been issued, but his case has been pending for about eight months.

Here is the AP story on the Jackson County case, via the Dec. 2, 2005 Indianapolis Star.

The Supreme Court ruling is State ex rel. Michael Bramley v. Tipton Circuit Court, a "published order granting permanent writ of mandamus," entered 8/26/05. Access it here. See also this ILB entry from 9/1/05 titled "Man jailed for 526 days on murder charge freed."

William C. Bradford has resigned as an associate professor at Indiana University School of Law-Indianapolis, effective Jan. 1. He was featured in this space June 26, when he claimed that a faculty committee had voted against him for tenure.

Bradford, 39, maintained that two left-leaning professors were leading the charge for political reasons. They disliked him because he was an Army veteran who supported the war, he said. * * *

On the law school's Web site and its Viewbook, Bradford was profiled as being in the Army infantry from 1990 to 2001. He wore a Silver Star lapel pin around campus. He had a major's gold-leaf insignia plate on his vehicle.

After my column ran portraying Bradford as a victim of a politically correct agenda, I was contacted by retired Army Lt. Col. Keith R. Donnelly, a recent law school graduate, West Point graduate and Gulf War veteran.

Donnelly had long been suspicious of Bradford's background, he said. What really piqued his attention was the Silver Star claim -- "it is a pretty high award for valor, and not many were awarded in Desert Storm."

Independently, Donnelly and I requested Bradford's service record from the Army. It showed he was in the Army Reserve from Sept. 30, 1995, to Oct 23, 2001. He was discharged as a second lieutenant. He had no active duty. He was in military intelligence, not infantry. He received no awards. * * *

In September, Bradford admitted on the law school blog that he had been assuming names and posting comments in support of himself.

Then The Chronicle for Higher Education, in a long article, reported that Bradford said he received no military decorations. He maintained that he was a major, however. * * *

"This is all very sad," said [Professor Henry C. Karlson], who considers himself Bradford's friend. Karlson believes the votes against Bradford had nothing to do with his record. Everyone believed he was a decorated vet.

He also confirmed what others in academia have told me: Universities don't check every detail in resumes. "I don't think that anyone comes off looking very good in this," he said.

That includes me.

I remember Holladay's June 26th column (which the ILB did not blog about at the time), and stories elsewhere that followed, with headlines such as "A brilliant professor is targeted for destruction."

Saturday, December 03, 2005

Law - Have lawyers been overbilled for bar review courses?

"Are Lawyers Being Overbilled for Their Test Preparation?" is the headline to this very long and compex story, to appear in the Business Section of the Sunday NY Times. Some of us remember when Indiana had more than one bar review course. Indeed, some of us remember when Indiana had NO bar review course. Some quotes from the start of the Times story:

MANY executives dream of dominating their industries the way BAR/BRI does the business of helping law school graduates prepare for bar examinations. Every law student knows BAR/BRI. Hundreds of thousands of them have taken its courses to pass the bar, an essential step in most states before a law school graduate can practice law. Some of the best law professors in the country teach segments of the company's courses, which are offered live in select locations and on videotape at others.

But now BAR/BRI could use a few lawyers itself. Some of the people who paid the fees, took the courses and passed the bar have turned on the company, which is owned by the Thomson Corporation of Stamford, Conn. Represented by an aggressive Los Angeles lawyer named Eliot G. Disner, they have filed a lawsuit charging that the company that helped them to become lawyers has operated an illegal monopoly and has overcharged hundreds of thousands of students by an average of $1,000 each - or, collectively, by hundreds of millions of dollars.

In complaints filed in the spring and summer, different groups of students charged that BAR/BRI has paid competitors to shut down and negotiated illegal agreements with potential competitors to divide the market. In particular, they cite a 2003 agreement with Louisiana State University, which until 2004 operated its own bar review course; under the deal, BAR/BRI promised to pay tens of thousands of dollars each year to the school, and the school promised not to run a competing bar review course.

Ind. Gov't. - More on cities offering broadband to their residents

Cities providing wireless access to their residents has been a issue nationally and in Indiana (recall this ILB entry from 11/23/05 and this one from 2/1/05).

The Washington Postreports today, in a story headlined "Angry BellSouth Withdrew Donation, New Orleans Says," that:

Hours after New Orleans officials announced Tuesday that they would deploy a city-owned, wireless Internet network in the wake of Hurricane Katrina, regional phone giant BellSouth Corp. withdrew an offer to donate one of its damaged buildings that would have housed new police headquarters, city officials said yesterday.

According to the officials, the head of BellSouth's Louisiana operations, Bill Oliver, angrily rescinded the offer of the building in a conversation with New Orleans homeland security director Terry Ebbert, who oversees the roughly 1,650-member police force.

City officials said BellSouth was upset about the plan to bring high-speed Internet access for free to homes and businesses to help stimulate resettlement and relocation to the devastated city. Around the country, large telephone companies have aggressively lobbied against localities launching their own Internet networks, arguing that they amount to taxpayer-funded competition. Some states have laws prohibiting them.

BellSouth spokesman Jeff Battcher disputed the city's version of events.

Sens. Richard J. Durbin and Barack Obama, both Illinois Democrats, asked Attorney General Alberto R. Gonzales yesterday to speed up the distribution of $12 million for security systems for judges, saying they are not getting help fast enough.

"Both senators' offices have heard from judges that this money that had been approved in May was not being used," said Joe Shoemaker, a Durbin spokesman. "That's a huge problem for us."

Congress approved the funding after the slayings of a judge's family in Illinois and court officials in Georgia. The money is to increase security at judges' homes and courthouses. The legislation did not specify whether the money could be used for monthly system monitoring fees.

"Much of this money has not been spent, and many judges are being forced to personally foot the bill for their security," the senators wrote Gonzales.

Environment - Interesting stories today, particularly as juxtaposed

The Bush administration skewed its analysis of pending legislation on air pollution to favor its bill over two competing proposals, according to a new report by the Congressional Research Service.

The Environmental Protection Agency's Oct. 27 analysis of its plan -- along with those of Sens. Thomas R. Carper (D-Del.) and James M. Jeffords (I-Vt.) -- exaggerated the costs and underestimated the benefits of imposing more stringent pollution curbs, the independent, nonpartisan congressional researchers wrote in a Nov. 23 report. The EPA issued its analysis -- which Carper had demanded this spring, threatening to hold up the nomination of EPA Administrator Stephen L. Johnson -- in part to revive its proposal, which is stalled in the Senate. * * *

"Although it represents a step toward understanding the impacts of legislative options, EPA's analysis is not as useful as one could hope," the Research Service report said. "The result is an analysis that some will argue is no longer sufficiently up-to-date to contribute substantially to congressional debate."

The congressional report, which was not commissioned by a lawmaker as is customary, said the EPA analysis boosted its own proposal by overestimating the cost of controlling mercury and playing down the economic benefits of reducing premature deaths and illnesses linked to air pollution.

"China Fires Environment Agency Chief Over Handling of Toxic Spill: Move Is Rare Admission of Failure" is the headline to this Post story, that begins:

BEIJING, Dec. 2 -- In a rare public admission of failure, China's Communist government fired the country's environmental protection chief Friday, saying his agency underestimated the impact of a massive chemical spill and mishandled the response to a disaster that poisoned the water supply of millions of people.

The dismissal of Xie Zhenhua, director of the State Environmental Protection Administration, followed nearly three weeks of conflicting and often misleading government statements about a toxic spill that polluted the Songhua River in China's northeast. The spill forced the shutdown of running water in Harbin, a city of 3.8 million, and continues to threaten residents downstream in neighboring Russia.

Ind. Courts - Court renovation reveals hidden artwork

"Court renovation reveals hidden artwork" is the headline to this AP story via the Louisville Courier Journal:

CONNERSVILLE, Ind. -- Officials are looking to save and restore intricate artwork, including hand-painted designs on a courtroom ceiling, that workers discovered while renovating the Fayette County Courthouse.

The ceiling features a large center medallion surrounded by ornate, hand-painted designs.

"We knew the medallion was there," said Fayette Circuit Court Judge Daniel Pflum. "We also knew there was historic painting on the walls in the hall, but the ceiling was a surprise. We haven't been able to find any record of it or when it was painted."

The courthouse is in the process of a $1.7 million renovation. The county is spending another $6.9 million for a three-story addition to the 1849 building.

Restoring the artwork on the ceiling and walls is estimated to cost $120,000 -- money that's not in the project's budget.

Architect Dean Illingworth of Schmidt Associates, which designed the addition and the renovation, and Fayette County Economic Development Corp. deputy director Jolissa Bates are searching for grants to help save the art. They also are asking for donations to the Fayette County Foundation.

On one side of the courthouse ceiling, workers removing old paint uncovered a painting of what might be a goddess of agriculture and industry -- a woman with flowing hair surrounded by a sheaf of wheat, a beehive, a plow and a mill wheel.

Experts believe the design might be repeated on another side of the ceiling, perhaps with a justice theme, but that area is yet to be uncovered.

Rebecca Garland of the Garland Guild, an Indianapolis company that specializes in historic restorations, said paint likely did not adhere to the artwork because of a thin layer of dirt that had accumulated on the ceiling. So when workers starting peeling off old layers of paint, the artwork was intact.

"This is exceptional work," Garland said. "It's fabulous."

Officials also want to put the courthouse on the National Registry of Historic Places.

"The Tippecanoe County Courthouse has artistic paintings, but nothing this elaborate," Illingworth said. "Fulton County has great detail in its paintings and unique paint colors, but this is a treasure. I have never seen anything like this painting."

Dealing a defeat to Gov. Rod Blagojevich, a federal judge on Friday struck down a state law that would ban the sale of violent and sexually explicit video games to minors.

In a ruling the video-game industry had said was inevitable, U.S. District Judge Matthew Kennelly ruled that the law, which was to take effect Jan. 1, violated constitutional protections on freedom of speech.

The governor said the ruling would be appealed.

State efforts to ban sexually explicit games went too far, Kennelly wrote in a 53-page opinion. The judge said the state came "nowhere near" proving that a ban on violent games would help prevent real-world violence by children. * * *

The law would have made sales of violent or sexually explicit video games to minors, such as the wildly popular "Grand Theft Auto: San Andreas," punishable by up to a year in jail and a fine of up to $5,000. The video games still would have been available to adults.

INDIANAPOLIS — Sen. Evan Bayh said today he would introduce legislation designed to prevent minors under age 17 from buying violent video games, saying there is increasing evidence that such games increase aggressive behavior in children.

“There is a growing body of research that indicates that exposure to graphic violence, graphic sexual content has adverse consequences to kids and their behavior — anger-management issues, violent-behavior issues, frustration, desensitization — things that come back to haunt society as a whole,” said Bayh, D-Ind.

He said the bill would prohibit anyone under 17 from purchasing M-rated games — those that under a video industry rating system should only be sold to players 17 or older — without the express consent of a parent. The legislation might also include fines up to $1,000 against stores that would violate such a law, Bayh said.

And a federal judge in Michiganissued a preliminary injunction Wednesday stopping a Michigan law that bars retailers from selling or renting violent video games to minors from going into effect until a lawsuit filed by the gaming industry is resolved.

The Entertainment Software Association, a trade group representing U.S. computer and video game publishers, claims the law is unconstitutionally vague and limits First Amendment rights.

The gaming industry also has sued to block similar laws approved in California and Illinois. [emphasis added]

That looks to be an error in the AP/Star story - the Michigan injunction was issued on a Wednesday, but it was November 9th. Here is an ABC News story from Nov. 10th. Some quotes:

LOS ANGELES (Reuters)—A federal judge on Wednesday granted video game industry groups' request for a preliminary injunction preventing the state of Michigan from enforcing a new law aimed at banning sales of violent video games to minors.

The ruling from the U.S. District Court for the Eastern District of Michigan comes amid a fierce campaign by lawmakers and some parents' groups to limit access to games with adult content. California and Illinois have passed similar laws and a Florida lawmaker is trying to get like legislation passed.

"(Michigan) has been unable to demonstrate the perceived harm it seeks to protect against," Judge George Caram Steeh wrote in a ruling obtained by Reuters.

He added that the state had failed to show what harm could result from selling games to minors. The judge also said "obvious harm" could arise from "stifling free speech" if the law goes into effect as planned on December 1.

"Plaintiffs have demonstrated that the Act is unlikely to survive strict scrutiny, and that irreparable harm follows from the loss of First Amendment freedoms," Judge Steeh wrote.

The Entertainment Software Association, the Video Software Dealers Association and the Michigan Retailers Association took on the Michigan law and are fighting the same battles in California and Illinois.

Courts already have blocked similar legislation in Washington State, the city of Indianapolis and St. Louis County in Missouri, finding that the laws violated free speech guarantees in the U.S. Constitution. [emphasis added]

Courts have struck down previous attempts to limit minors' access to such games, including an attempt in 2000 by Indianapolis Mayor Bart Peterson to ban minors from playing violent video games in public arcades without parental consent. In 2001, the U.S. Supreme Court let stand an appeals court ruling barring enforcement of the city ordinance.

Bayh, though, said he thinks the legislation would withstand judicial scrutiny. "It is much more narrowly defined (than past attempts), basically making mandatory the voluntary system that is already in place," he said.

A story today in the Peoria Illinois Journal Star, writing about yesterday's federal court ruling striking down the Illinois law, reports:

An appeal would go to the Seventh Circuit U.S. Court of Appeals, which in 2001 threw out an Indianapolis ordinance that regulated violent video games. Bersell said he believes it is "highly unlikely" that the Court of Appeals would rule differently in the Illinois case. [emphasis added]

Finally, here is an article on FindLaw.com titled "Can States Constitutionally Regulate Video Games, As California Is Considering Doing? The First Amendment Framework That Would Probably Apply." The authors are law profs Vikram David Amar and Alan Brownstein.

Here is the Indiana Clerk of the Court's list of the Disposition of Cases by Unpublished Memorandum Decision [the Not for Publication (NFP) opinions list] issued by the Court of Appeals for the week ending December 2, 2005. There are 36 Court of Appeals cases (a number of these are cases reversed and remanded) listed this week, plus one Tax Court case.

For earlier weekly NFP lists (going back to the week ending August 19, 2005), check "NFP Lists" under "Categories" in the right column.

Law - Louisville Metro Police set up robbery website

"Metro police introduce Web site on robberies: Department hopes videos, photos will draw tips" is the headline to a story today in the Louisville Courier Journal:

Facing a record number of robberies this year, Louisville Metro Police has set up a new Web site -- www.lmpdasap.com -- that allows the public to peruse all robberies in the city in which store surveillance videos, still images or suspect mug shots are available.

Each link contains a description of what took place and information about the suspect.

Police hope residents will check the site, recognize someone and alert police -- either through e-mail links on the site, by phone or in person.

"All those eyes out there are going to help us," said robbery squad Detective Larry Duncan. * * *

The Web site -- they're calling it the Armed Suspect Apprehension Program, or ASAP -- was developed by detectives in the robbery squad and paid for with money already in the squad's budget. It will be updated several times a week.

It's the first time such information has been made available to the public in one location, according to Police Chief Robert White. White said he has not found another department in the country that has a Web site like it. * * *

Police expect people who view the site to come away with a new realization about the seriousness of the crime. This year, officers have investigated robberies involving handguns, sawed-off shotguns, knives and, recently, a wrench.

"This is not television," Mueller said. "This is the real deal. This is somebody in this community going in and robbing a business."

Ind. Decisions - Still more on "Federal Court limits prayers in Indiana House"

The Louisville Courier Journal has a story today headlined "Some disinclined to give House prayer." Lesley Stedman Weidenbener leads with: "Three pastors and one layman who offered prayers earlier this year in the Indiana House said yesterday that they would be uncomfortable doing so again under restrictions imposed Wednesday by a federal judge."

The Indianapolis Star today has two stories and an editorial. The Star's religious editor, Robert King, has a story headlined "Ministers divided over federal court's prayer ruling." A side-bar looks at some local government entities with the intro: "Although federal Judge David Hamilton's ruling applies only to the Indiana House, leaders of area governments and school boards took note Thursday of how it might affect how they conduct meetings."

"Judge has stirred controversy before: Experts divided on prayer ruling; prior decisions included abortion, DNA cases" is the headline to a story by Richard D. Walton that begins:

He graduated Yale Law School and was a Fulbright Scholar. President Clinton appointed him to the federal bench. And lawyers know him for his analytical ability to break down a case.
Wednesday, Judge David Hamilton stepped into controversy -- and not for the first time.

The son of a prominent local minister, Hamilton made a ruling that angered many Christians, holding that prayers said at the start of Indiana House sessions must not mention Jesus Christ or advance any religion. Several legal scholars on Thursday were divided on the decision.

The Star'seditorial is titled "Religious tolerance takes a hit." However, this headline might have been more appropriate had Judge Hamilton's ruling gone the other way.

Thursday, December 01, 2005

Law - Trial-less lawyers turn to pro bono work

"Trial-less Lawyers: As more cases settle, firms seek pro bono work to hone associates' courtroom skills." So reads the headline to a really interesting piece in the Wall Street Journal today, on the front-page of the Marketplace section. The article reports that:

many law firms are coming up with creative ways to score trial work -- reaching out to judges, government agencies and legal-aid associations, offering to donate associate time in exchange for referrals of cases that seem particularly likely to go to trial. Typically, once a firm gets such a referral, it handles every aspect of the case.

"Firms have really begun to realize the advantages of donating legal services as a professional development tool,"

Unfortunately, currently this story is accessible to paid subscribers only.

Marc Kadish, a partner at Mayer, Brown, Rowe & Maw LLP, recently made an offer to federal judges in Chicago, where the law firm is based: The 1,300-member firm would represent, pro bono, any prisoner with a case set for trial who didn't already have counsel.

Since prisoners are prolific case filers and most private lawyers disdain such cases, Mayer Brown thinks the offer will give its young associates the opportunity to hone their courtroom skills -- and it might be one of the few chances they get in the near future.

Courtroom trials have been steadily declining since the 1980s. There were only 5,500 federal civil trials across the U.S. last year, down sharply from 14,300 in 1984. State civil jury trials dropped 34 percent between 1976 and 2003, even as the volume of civil cases disposed of during the period rose 165 percent. In criminal court, meanwhile, federal sentencing guidelines are so stiff that more than 95 percent of all criminal defendants opt for plea deals that offer leniency rather than risk going to trial.

There are plenty of reasons behind the falloff. Scared off by huge jury verdicts, such as the $253 million awarded this year to the widow of a man who died after taking Merck & Co.'s Vioxx drug, more civil litigants are arbitrating or settling the majority of disputes, legal experts say.

The cost of litigation, which often drags on for years, has scared off some plaintiffs. Changes in the law have also had a dampening effect on trials: Judges can now more easily dismiss cases that rely on junk science. "It's like you prepare for a big game and then it gets canceled, so you have to negotiate a final score," says James Winton, a partner with Cleveland-based Baker & Hostetler.

Furthermore, lawyers say fewer marginal or low-damage cases are being filed now that some state legislatures have imposed caps on jury verdicts.

The trend worries some judges. "There is so much settlement and arbitration that we are losing sight of the basic right to trial by jury," says U.S. District Judge David Hittner of Houston.

Ind. Decisions - Supreme Court revises a defendant's sentence

In Leonard Lamont Frye v. State of Indiana the Supreme Court today, in a decision written by Justice Sullivan, revised the sentence of a defendant who had been sentenced to 40 years for breaking into a home and taking a television set.

At trial, a jury found Frye guilty of the Burglary, Theft, and False Informing charges. It also determined that Frye was a Habitual Offender. The trial court sentenced Frye to 15 years incarceration on the Burglary charge, which was enhanced by 25 years for being a Habitual Of-fender, for a total of 40 years. * * *

Frye appealed his sentence, arguing that his sentence was inappropriate in light of the na-ture of his offense and his character. The Court of Appeals affirmed his 40 year sentence for Burglary “in light of his extensive criminal history and questionable character. . . .” * * * Frye sought, and we granted, transfer. * * *

Frye asks that we exercise our authority under Indiana Constitution article VII section 4, to review and revise his sentence. We may do so “if after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). As noted above, the trial court en-hanced the presumptive sentence for Burglary of 10 years by five years to a total of 15 years and then imposed a Habitual Offender enhancement of 25 years, for a total executed sentence of 40 years. We agree with Frye that 40 years is inappropriate in light of the nature of the offense and the character of the offender. * * *

We revise Frye’s sentence for Burglary to the presumptive term for a Class B felony of 10 years. Under the Habitual Offender enhancement, we impose an additional sentence of 15 years for a total of 25 years on the Burglary charge. Frye’s remaining sentences for Theft and False Informing remain unchanged and are to run concurrently.

We reverse Frye’s sentence of 40 years for Burglary and being a Habitual Offender and remand to the sentencing court with instructions to issue an amended sentencing order and to is-sue or make any other document or docket entries necessary to impose upon Frye a sentence of 10 years for Burglary as a Class B felony, enhanced by 15 years for being a Habitual Offender, without a hearing.

Ind. Decisions - Five decisions from Court of Appeals today

The Court of Appeals has issued five opinions today: three are criminal appeals, affirmed; one is an involuntary termination, affirmed; one is a petition for rehearing, granted and prior decision affirmed.

"The door still spins: Lobbying limits needed for former lawmakers" is the heading to the first. Some quotes:

When legislators leave the Indiana General Assembly, they seldom wander far from the Statehouse. The list of lawmakers who return to lobby former colleagues on behalf of public and private interests is long. As the 2006 session draws near and new faces appear in both the House and Senate, a debate over the revolving door is warranted.

Rep. Phyllis Pond, R-New Haven, filed a bill in the last session that would have barred any legislator from registering as a lobbyist in the one-year period after leaving office. Her bill was never called for a hearing.

“It’s a good idea whose time hasn’t come,” Pond said Wednesday. “It’s something I still feel very strongly about. There are so many of those lawmakers who use their time in the legislature to get a high-paying job as a lobbyist. They use the friendships they’ve made to get access.”

Pond said she didn’t expect to file the legislation in the upcoming short session but said she would like to drum up support for the measure, preferably one calling for a two-year ban on lobbying activities for former lawmakers.

“Unfortunately, it seems to take a scandal to get these passed,” she said.

Campaign finance laws have been the focus of national attention in recent years, but problems in Indiana’s laws have been largely ignored. Legislators need to update and improve the laws governing local races, and the No. 1 goal should be to make campaign finance reports more accessible.

The Indiana Secretary of State’s office maintains an excellent Internet site that allows citizens to view the campaign reports of candidates for statewide office and for the General Assembly. Voters can search for contributors as well as candidates. For local offices, though, the information is only available by viewing the paper records at election board offices. To see whether a specific individual or company gave to a candidate, voters have to review reams of paper, page by page.

Some local reports list donations by order of contribution date; some list them alphabetically; some almost randomly. Some are typewritten and easy to read; others are handwritten and almost indecipherable.

The Secretary of State’s office hires staff and contractors to manually input the contributions, a step that increases the chance for error. The inputting is not an option for local election boards, which cannot afford the labor.

In addition to being labor intensive, past experiments with manually inputting data uncovered math errors that could not be reconciled, said Pam Finlayson, director of the Allen County Election Board. The software being tested demanded all the figures add up – and they too often did not.

The best answer – for both candidates and voters – is for campaign finance reports to be filed digitally, either online or on discs delivered to election board offices. Those reports, in turn, should be available online with search functions comparable to those already offered for statewide candidates.

Comment: This is a good idea. But for a good idea gone bad, see this 10/31/05 ILB entry titled "Putting lobbying records online is fiasco in Congress."

"House prayers can't invoke Jesus: Federal judge declares that invocations advancing a specific religion are unconstitutional" is the front-page headline to this story by Richard D. Walton in the Indianapolis Star. (See, or scroll down to, this ILB entry from yesterday for quotes from the ruling, a link to the ruling, and background.) Some quotes:

The case stemmed from a lawsuit filed by the Indiana Civil Liberties Union on behalf of four citizens. The suit contended the House prayers -- a 188-year tradition -- overwhelmingly promoted Christian values. * * *

Of 53 prayers offered in the House during the 2005 session, 41 were delivered by people identified with Christian churches, Hamilton's written opinion says. Of the 45 prayers for which transcripts were available, 29 were offered in the name of Jesus, the Savior and/or the Son. * * *

In an incident that prompted some offended representatives to walk out of the chamber, one minister led the House in the singing of Just a Little Talk with Jesus. This spurred the legal challenge.

Court records filed on behalf of Bosma noted that prayers have been said before American legislative bodies since colonial days. His side argued that the House prayers were inclusive in that people of all faiths can volunteer for the duty, and that there is no discrimination on who is chosen. Jewish and Muslim clerics also delivered the prayer during the last legislative session.

[Representative] Bosma, an Indianapolis Republican, called the ruling "intolerable."

"This is a terrible decision, and I'm honestly shocked," he said. "It goes much further than any other court really in the nation has in dictating the content of free speech, especially here in the House where free speech is held in such high regard."

Bosma said he and his attorneys are reviewing all their legal options, including an appeal. He also said in response to a question that no option -- including defying the order -- has been ruled out.

Ken Falk, the Indiana Civil Liberties Union attorney who filed the lawsuit against Bosma that led to yesterday's decision, said the issue is not one of free speech but instead whether government can invoke a religious view.

The U.S. Supreme Court set boundaries for legislative prayer in a 1983 case, he said, and Hamilton's ruling simply follows that precedent.

"When a human being steps forward to the speaker's pulpit and ascends those stairs, that person is now the state of Indiana," Falk said. "As the state of Indiana, that person must be inclusive and cannot endorse any one religious faith or belief."

Hamilton's decision applies only to the Indiana House. It does not affect the state Senate, city or county councils, or any other governmental body, many of which also begin their meetings with prayers.

But Falk said it will serve as a "strong precedent" for challenges to Christian prayers in the Senate or local meetings. He said other public officials should take note and ensure that their prayers are nondenominational.

"(The sectarian prayers) are very exclusive," Falk said. "And (the House) is the last place in the state of Indiana that we want anyone to feel that they are less of a citizen."

And while Bosma said the injunction's wording barring the use of the name Christ was unique, Falk said there are at least three other federal injunctions that disallow naming any deity.

"‘Christ’ removed from Indiana House: Opening prayer called illegal; speaker incensed" is the headline that covers it all in the Fort Wayne Journal Gazette today. Niki Kelly writes:

INDIANAPOLIS – A federal judge issued a permanent injunction Wednesday barring Republican House Speaker Brian Bosma from allowing sectarian prayer and requiring him to advise clergy and others not to use Christ’s name to open up sessions of the Indiana House of Representatives.

The 60-page, strongly worded opinion dismissed all of Bosma’s arguments in the lawsuit, filed by the Indiana Civil Liberties Union in May.

The ICLU argued that many of the prayers offered crossed the line into proselytizing for Christianity and violated the U.S. Constitution.

U.S. District Court Judge David F. Hamilton – the son of a minister – gave numerous examples of such activity in his decision, noting that at least 29 of the 53 opening prayers last session were offered in the name of Jesus, Jesus Christ, the Savior or the Son. * * *

“I am honestly shocked,” he said. “Every man and woman of faith … should be allowed to pray in accordance with their own conscience. I think that’s the American way.”

He also said that prayers have been offered representing many faiths, and he said in a written statement that “it is intolerable that a court in this free society would ask a person to censure the prayer they offer in the tradition of their faith.”

Bosma continually focused on the freedom-of-speech aspect to the case, while ICLU legal director Ken Falk said the case was about the Establishment Clause of the U.S. Constitution, which prohibits government from establishing or favoring a religion.

Bosma has 30 days to decide whether to appeal, and said he will consider all his legal options. He didn’t exclude any possibility, including defying the ruling.

Falk, though, said he doubts Bosma would risk a contempt citation given his status as a licensed attorney in the state.

About the Indiana Law Blog - going strong as 2005 draws toward a close

I just finished going through all the ILB entries for 2005, which turned out to a massive task -- there are hundreds of posts each month, some lengthy.

The objective was to digest what I could see from hindsight were the most important posts, and to use them to create a sort of "summary of Indiana law in 2005." Skimming through the entries, I can see the ebb and flow of issues rising, and then sometimes being resolved, sometimes not.
Where will this appear? In the December issue of Res Gestae.

I think of the ILB as an information blog, pulling together newspaper stories of interest from around the state and from outside the state each day, locating and presenting summaries of Indiana-related decisions, quoting relevant press releases and the like, and when possible putting the information in context -- what has happened before, what are some other angles...

Within the past year or more, a number of interesting political opinion blogs have popped up in Indiana, blogs that use information as a springboard to present a point of view. Some flame out after a month or two, some stay. Currently they number in the dozens.

Two different blogs have appeared within the past few weeks with the stated goal of presenting each day "the best quotes" from these blogs. One came and flamed, it seemed, within a few day period, although its skeleton remains. The other began sometime in November -- I just looked at the site and can't tell exactly when -- and continues on as of December 1st. I wish it well.

BTW, the ILB has achieved the best stats of its several-year existence this month. Thanks to my long-time readers, and "hey" to my new readers.